Javan D. Brown v. State of Indiana

J
                                                                                 FILED
                                                                             Nov 19 2020, 8:50 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Jennifer L. Koethe                                        Curtis T. Hill, Jr.
      Navarre, Florida                                          Attorney General of Indiana
                                                                Courtney Staton
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Javan D. Brown,                                           November 19, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                20A-CR-125
              v.                                                Appeal from the LaPorte Superior
                                                                Court
      State of Indiana,                                         The Honorable Michael Bergerson,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                46D01-1901-MR-1




      Tavitas, Judge.


                                              Case Summary
[1]   Javan Brown appeals his convictions for reckless homicide, a Level 5 felony,

      and dangerous possession of a firearm, a Class A misdemeanor. We affirm.




      Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020                           Page 1 of 24
                                                         Issues
[2]   Brown raises five issues, which we revise and restate as:


                     I.       Whether fundamental error occurred because Brown’s
                              mother was subject to the trial court’s separation of
                              witnesses order.


                     II.      Whether the trial court properly allowed the jury to
                              examine the firearm during deliberations.


                     III.     Whether the evidence is sufficient to sustain Brown’s
                              conviction for reckless homicide.


                     IV.      Whether Brown’s convictions violate the prohibition
                              against double jeopardy.


                     V.       Whether the trial court abused its discretion when it
                              sentenced Brown.


                     VI.      Whether Brown’s sentence is inappropriate in light of
                              the nature of the offenses and the character of the
                              offender.


                                                          Facts
[3]   Dareon 1 Brown, the brother of sixteen-year-old Brown, dated Aubree Kolasa

      for approximately three years. Kolasa’s cousin, eighteen-year-old Justin

      Garner, and Dareon were “close friends.” Tr. Vol. II p. 230. Dareon was “shot




      1
          Some portions of the record and Appellant’s Brief use the spelling “Dereon.”


      Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020               Page 2 of 24
      and killed” in December 2018.

Id. At the time

of Dareon’s funeral, Brown was

      in the juvenile detention center and, therefore, missed his brother’s funeral.


[4]   After Brown was released from detention, on January 13, 2019, Brown illegally

      purchased a black Taurus semi-automatic 9 mm caliber handgun “for his

      protection.” Tr. Vol. IV p. 179. On Dareon’s birthday, Brown shot the

      handgun four times in honor of Dareon. Brown was familiar with the handgun

      and its safety mechanisms, but Brown did not take any safety courses regarding

      the use of firearms.


[5]   Additionally, after Brown was released from detention, Brown, Garner, Kolasa,

      and Kenya Atterberry often “hung out” and smoked marijuana together.

Id. at 90.

On the evening of January 16, 2019, Atterberry and Brown made

      arrangements to hang out together. Garner borrowed his mother’s car, and

      Garner and Kolasa picked up Brown. Kolasa observed that Brown had his

      handgun in the waistband of his pants, but Brown later put the gun in the

      pocket on the back of the driver’s seat. Garner was driving. The three

      eventually drove to pick up Atterberry at Danielle McLachlan’s house on

      Jackson Street in Michigan City. Kolasa was in the passenger seat, and Brown

      was in the back seat behind Garner, the driver. Garner stopped the vehicle in

      front of McLachlan’s house, and Brown called Atterberry and told her to come

      outside.


[6]   While waiting on Atterberry, Brown pulled the gun out of the pocket on the

      back of the seat. Although Brown is right-handed, he pulled the gun out with

      his left hand and pulled the trigger. The bullet entered the bottom portion of

      the driver’s seat headrest. The bullet then entered the back of Garner’s head on

      Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020     Page 3 of 24
      the left side and exited Garner’s forehead on the right side, resulting in a

      “massive subarachnoid hemorrhage and tissue destruction [in the brain] from

      the path of the bullet” and causing Garner’s death. Ex. Vol. II p. 57. The bullet

      lodged in the sun visor on the driver’s side of the vehicle.


[7]   Brown told Kolasa “not to tell nobody.” Tr. Vol. IV p. 194. Brown also told

      Kolasa to tell the police that “it was a drive-by” shooting and that the shots

      came from a black car.

Id. at 199.

When Atterberry went outside, she found

      Kolasa and Brown on the porch. Kolasa was crying, and Brown had his arm

      around Kolasa. Brown called 911 to report a drive-by shooting. Shortly before

      8:00 p.m., police were dispatched to the location due to a report of “shots

      fired.” Tr. Vol. II p. 248.


[8]   After Atterberry observed that Garner was dead, she invited Kolasa and Brown

      inside the house. Brown kept telling everyone it was a drive-by shooting, but

      Kolasa knew that the shot was fired inside the car and that it was not the result

      of a drive-by shooting. According to Atterberry, Brown gave Atterberry some

      marijuana, which she hid inside the dryer. According to Brown, however, he

      gave Atterberry marijuana, money, and his gun, and Atterberry hid the items.


[9]   When police arrived, the vehicle was still in drive and was running. Both of

      Garner’s feet were on the brake. Brown repeatedly claimed at the scene that

      Garner was shot in a drive-by shooting. The officers, however, observed no

      bullet holes on the outside of the vehicle. Later that evening, Brown confessed

      to his mother that he accidentally shot Garner and that Garner was not killed in

      a drive-by shooting.



      Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020      Page 4 of 24
[10]   McLachlan’s mother consented to a search of her residence. Two small bags of

       a green leafy substance believed to be marijuana and a black Taurus semi-

       automatic 9 mm caliber handgun were found hidden in the washing machine

       under folded towels. A spent 9mm shell casing was located on the ground near

       the vehicle.


[11]   The State charged Brown with murder. The State later filed a motion to amend

       the charging information to add a charge of dangerous possession of a firearm,

       a Class A misdemeanor, which the trial court granted. At the jury trial, Brown

       testified and admitted to accidentally shooting Garner.


[12]   The jury found Brown guilty of reckless homicide, a Level 5 felony, and

       dangerous possession of a firearm, a Class A misdemeanor. At the sentencing

       hearing, the trial court found no double jeopardy violation regarding the entry

       of both convictions and entered judgment of conviction on both counts. When

       sentencing Brown, the trial court found one mitigating factor—the fact that

       Brown was sixteen years old at the time of the offense. The trial court found

       the following aggravators: (1) Brown’s significant juvenile adjudications, which

       “reflect a fundamental disdain for authority and an acceptance of violence as a

       viable option”; (2) Brown’s lack of remorse; (3) the imposition of the advisory

       sentence would depreciate the seriousness of the crime; (4) nine prior attempts

       at rehabilitation failed; and (5) Brown’s character and “apparent affinity for and

       possible affiliation with” a gang. Appellant’s App. Vol. III pp. 15-16. The trial

       court sentenced Brown to five and one-half years for the reckless homicide

       conviction and one year for the dangerous possession of a firearm conviction.




       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020     Page 5 of 24
       The trial court ordered the sentences to be served consecutively, for an

       aggregate sentence of six and one-half years. Brown now appeals.


                                                     Analysis
                                     I. Mother’s Presence During Trial

[13]   Brown argues that the trial court erred and violated his due process rights by

       failing to allow his mother to remain in the courtroom during the trial. 2 Brown

       and the State both requested a separation of witnesses order, which the trial

       court granted. In general, a separation of witnesses order is governed by

       Indiana Evidence Rule 615. “The basic premise of Rule 615 is that, upon

       request of any party, witnesses should be insulated from the testimony of other

       witnesses.” Long v. State, 

743 N.E.2d 253

, 256 (Ind. 2001). Evidence Rule 615

       provides:


               At a party’s request, the court must order witnesses excluded so
               that they cannot hear other witnesses’ testimony. Or the court
               may do so on its own. But this rule does not authorize
               excluding:


               (a) a party who is a natural person;


               (b) an officer or employee of a party that is not a natural person,
               after being designated as the party’s representative by its attorney;
               or




       2
        In support of his argument, Brown relies upon Harris v. State, 

148 N.E.3d 1107

(Ind. Ct. App. 2020). Our
       Supreme Court, however, granted transfer in Harris and vacated the opinion.

       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020                           Page 6 of 24
               (c) a person whose presence a party shows to be essential to
               presenting the party’s claim or defense.


[14]   Because Brown’s mother was on the witness list, she was subject to a separation

       of witnesses order and was not allowed in the courtroom during testimony.

       Brown’s mother was present only during jury selection and, thereafter, she

       remained outside of courtroom until she was called to testify for the defense.

       Brown, however, did not raise an objection to the separation of witnesses order.

       In fact, Brown requested the separation of witnesses order and did not request

       an exception for Brown’s mother.


[15]   Our Supreme Court has held that “[a] party’s failure to object to, and thus

       preserve, an alleged trial error results in waiver of that claim on appeal.”

       Batchelor v. State, 

119 N.E.3d 550

, 556 (Ind. 2019). “[W]hen the failure to

       object accompanies the party’s affirmative requests of the court, it becomes a

       question of invited error.”

Id. “The distinction in

these two doctrines is an

       important one: whereas waiver generally leaves open an appellant’s claim to

       fundamental-error review, invited error typically forecloses appellate review

       altogether.”

Id. [16]

  Here, Brown invited the alleged error by affirmatively requesting the separation

       of witnesses order that he now contests. Accordingly, appellate review of this

       issue is foreclosed altogether. See

id. Moreover, even if

Brown did not invite

       the error, he waived any alleged error by failing to object. See

id. On appeal, Brown

makes no argument that fundamental error occurred. Accordingly,

       Brown’s argument that the trial court erred by excluding his mother from the

       courtroom fails.

       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020      Page 7 of 24
                                    II. Jury’s Examination of Firearm

[17]   Next, Brown argues that the trial court erred by allowing the jury to pull the

       trigger on the firearm during deliberations. According to Brown, allowing the

       jury to pull the trigger on the firearm during deliberations “was an improper

       experiment because it may have led to supplemental evidence.” Appellant’s Br.

       p. 20.


[18]   Ray Wolfenbarger, a firearms examiner, testified regarding the Taurus

       handgun. Wolfenbarger explained the safety features in place on the handgun

       and testified that the trigger required four and three-quarters pounds of pressure

       to pull the trigger. The State requested that the jury be allowed to examine the

       firearm. The trial court then instructed the jury: “we are going to give you the

       opportunity to pass the exhibit along, . . . you are not entitled to make any

       experiments for instance, dropping it, pulling the trigger, otherwise examining

       this other than to just hold it, look at it and pass it on[.]” Tr. Vol. IV p. 4. The

       next day, the State asked the trial court to reconsider its decision and allow the

       jury to pull the trigger of the handgun. The trial court took the motion under

       advisement. The trial court later granted the State’s motion and found:


                [The trial court] GRANTS the request as said examination,
                including the pulling of the trigger of said weapon is consistent
                with the evidence presented at trial of a properly admitted exhibit
                and may assist the trier of fact in giving meaning to the technical
                testimony of the firearms expert, Sgt. Ray Wolfenbarger related
                to force needed to squeeze the trigger mechanism. See Patterson v
                State, 

958 N.E.2d 11

([Ind. Ct. App.] 2011), and Kennedy v. State,
                

578 N.E.2d 633

([Ind.] 1991).


       Appellant’s App. Vol. II p. 178.


       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020       Page 8 of 24
[19]   Our Supreme Court has held that: “[A]n experiment by the jury is improper

       where it amounts to additional evidence supplementary to that introduced

       during the trial.” Bradford v. State, 

675 N.E.2d 296

, 304 (Ind. 1996) (citing

       Kennedy v. State, 

578 N.E.2d 633

(Ind. 1991), cert. denied, 

503 U.S. 921

, 112 S.

       Ct. 1299 (1992)). For example, in Bradford, our Supreme Court found no error

       where, during deliberations, jurors returned to the crime scene and performed

       experiments regarding how fast a person could pour gasoline out of a can and

       crawl through the house. Our Supreme Court determined that the jury’s

       actions were in keeping with the evidence presented and were not improper.


[20]   Similarly, in Pattison v. State, 

958 N.E.2d 11

, 20 (Ind. Ct. App. 2011), trans.

       denied, this Court found no error where the jurors returned to the courtroom

       during their deliberations to experiment with a weight machine. “A female

       juror lay on the weight bench and tried to get out from under the weight bar.

       Next, the same juror tried to get out from under the weights while another juror

       sat on her and held her wrists.” 

Pattison, 958 N.E.2d at 21

. This Court held

       that the jurors’ actions were not improper where the jurors “acted in keeping

       with the testimony presented at trial” and “were examining a properly admitted

       exhibit.”

Id. [21]

  Here, we first note that there is no evidence in the record that the jurors actually

       pulled the trigger on the firearm during deliberations. Even if the jurors

       actually pulled the trigger during deliberations, however, such actions would be

       in keeping with the evidence presented. Wolfenbarger testified extensively

       regarding Brown’s handgun, including testimony regarding the amount of

       pressure required to pull the trigger on Brown’s handgun. Allowing the jurors


       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020       Page 9 of 24
       to pull the trigger during deliberations under such circumstances would not

       amount to an experiment that introduced evidence supplementary to that

       introduced during the trial. Accordingly, the trial court’s order was not

       erroneous. See, e.g., 

Bradford, 675 N.E.2d at 304

.


                                      III. Sufficiency of the Evidence

[22]   Next, Brown challenges the sufficiency of the evidence to sustain his conviction

       for reckless homicide. Sufficiency of the evidence claims “warrant a deferential

       standard, in which we neither reweigh the evidence nor judge witness

       credibility.” Powell v. State, 

151 N.E.3d 256

, 262 (Ind. 2020). We consider only

       the evidence supporting the judgment and any reasonable inferences drawn

       from that evidence.

Id. We will affirm

a conviction if there is substantial

       evidence of probative value that would lead a reasonable trier of fact to

       conclude that the defendant was guilty beyond a reasonable doubt.

Id. [23]

  Indiana Code Section 35-42-1-5 provides: “A person who recklessly kills

       another human being commits reckless homicide, a Level 5 felony.” “A 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(c).


[24]   According to Brown, the evidence is insufficient to sustain his conviction

       because his actions “were simply accidental.” Appellant’s Br. p. 21. Brown

       testified that he knows how a firearm works; that he was aware of the safety on

       the handgun; that he knew how to load the handgun; and that he knew another

       round would be chambered after the gun was fired. The evidence showed that

       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020    Page 10 of 24
       Brown placed the handgun in the pocket of the seat while the handgun was

       loaded, the safety was disabled, and a round was in the handgun’s chamber.

       Brown then reached into the pocket with his left hand, even though he is right-

       handed, and pulled the handgun out of the pocket with his finger on the trigger.

       Brown testified that he “pulled [the handgun] out too fast, and the shot went off

       . . . .” Tr. Vol. V p. 80.


[25]   Under these circumstances, the jury could have inferred that Brown killed

       Garner while acting “in plain, conscious, and unjustifiable disregard of harm

       that might result” and that the disregard involved “a substantial deviation from

       acceptable standards of conduct.” Ind. Code § 35-41-2-2(c). The evidence is

       sufficient to sustain Brown’s conviction for reckless homicide. See, e.g., Rice v.

       State, 

916 N.E.2d 962

, 968 (Ind. Ct. App. 2009) (affirming a conviction for

       reckless homicide where we could not “say that firing a gun in a car with six

       occupants is not reckless”).


                                             IV. Double Jeopardy

[26]   Brown argues that his convictions for reckless homicide and dangerous

       possession of a firearm violate the prohibition against double jeopardy. We

       apply a de novo standard of review to double jeopardy claims. Sullivan v. State,

       

77 N.E.3d 187

, 192 (Ind. Ct. App. 2017), trans. denied; see also Wadle v. State, 

151 N.E.3d 227

, 237 (Ind. 2020) (noting that we review statutory and constitutional

       questions of law de novo); 

Powell, 151 N.E.3d at 262

(noting that we “apply a

       de novo standard of review to questions of statutory law”).


[27]   Specifically, Brown contends that “the actual evidence the jury used to convict

       Mr. Brown of [reckless homicide and dangerous possession of a firearm] may

       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020      Page 11 of 24
       be identical, therefore one of these convictions should be vacated.” Appellant’s

       Br. p. 25. The trial court, however, found “that these two (2) crimes are

       separate and independent of one another and that the defendant is not subjected

       to any double jeopardy violation.” Appellant’s App. Vol. III p. 16. The trial

       court found: “Notwithstanding the reckless use of the handgun in the death of

       Justin Garner, ample evidence exists in the record to support the verdict on

       amended Count II: including circumstances related to the knowing and

       intentional possession of same on or about January 18, 2018; i.e. the purchase

       of the gun, its test firing, display of same to others (all by the defendant) and

       even, according to the defendant, being in his possession for his ‘protection.’”

Id. at 16

n.1.


[28]   In his Appellant’s Brief, Brown relies upon Richardson v. State, 

717 N.E.2d 32

       (Ind. 1999). Following the filing of Appellant’s Brief, however, our Supreme

       Court handed down Wadle v. State, 

151 N.E.3d 227

(Ind. 2020), and Powell v.

       State, 

151 N.E.3d 256

(Ind. 2020), on the same day and expressly overruled

       Richardson. Accordingly, we will apply the framework set forth in Wadle and

       Powell in our review of Brown’s double jeopardy claims. 3




       3
          In Diaz v. State, we also addressed double jeopardy “pre-Wadle law . . . only because there are outstanding
       questions about whether Wadle should be applied retroactively.” Diaz v. State, __ N.E.3d __, No. 20A-CR-
       203, slip op. at 5 (Ind. Ct. App. Oct. 2, 2020). Under the pre-Wadle actual-evidence test, the defendant must
       demonstrate “a reasonable possibility that the evidentiary facts used by the fact-finder to establish the
       essential elements of one offense may also have been used to establish the essential elements of a second
       challenged offense.” 

Richardson, 717 N.E.2d at 53

. No such reasonable possibility exists here. The reckless
       homicide conviction was based upon evidence that Brown killed Garner. As discussed below, the dangerous
       possession of a firearm charge was based upon evidence that sixteen-year-old Brown purchased a firearm,
       shot it in honor of his brother, and carried the firearm in his waistband. The actual-evidence test is not
       violated when “each conviction required proof of at least one unique evidentiary fact.” Diaz, __ N.E.3d at __,
       slip op. at 6 (quoting Bald v. State, 

766 N.E.2d 1170

, 1172 (Ind. 2002)); see also Guyton v. State, 771 N.E.2d


       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020                            Page 12 of 24
[29]   In Wadle, our Supreme Court noted that “[s]ubstantive double jeopardy claims

       come in two principal varieties: (1) when a single criminal act or transaction

       violates a single statute but harms multiple victims, and (2) when a single

       criminal act or transaction violates multiple statutes with common elements

       and harms one or more victims.” 

Wadle, 151 N.E.3d at 247

. Powell addressed

       the first variety 4, while Wadle addressed the second. Here, the second variety is

       implicated. Accordingly, we will focus our attention on the analysis set forth in

       Wadle.


[30]   Wadle “adopt[ed] an analytical framework that applies the statutory rules of

       double jeopardy.”

Id. at 235.

The test provides:


                  [W]hen multiple convictions for a single act or transaction
                  implicate two or more statutes, we first look to the statutes
                  themselves. If either statute clearly permits multiple punishment,
                  whether expressly or by unmistakable implication, the court’s
                  inquiry comes to an end and there is no violation of substantive
                  double jeopardy. But if the statutory language is not clear, then a
                  court must apply our included-offense statutes to determine
                  whether the charged offenses are the same. See I.C. § 35-31.5-2-
                  168. If neither offense is included in the other (either inherently
                  or as charged), there is no violation of double jeopardy. But if
                  one offense is included in the other (either inherently or as
                  charged), then the court must examine the facts underlying those
                  offenses, as presented in the charging instrument and as adduced



       1141, 1142 (Ind. 2002) (finding no double jeopardy violation due to convictions for murder and carrying a
       handgun without a license).
       4
           The Court held in Powell:

                If the statute defines a separate offense for certain discrete acts . . . within that course of conduct,
                the separate charges (and corresponding convictions) may stand. But if the statute fixes no
                separate penalty for each of these acts, and unless those actus are sufficiently distinct “in terms
                of time, place, [and] singleness of purpose,” then a court may impose only a single conviction.
       

Powell, 151 N.E.3d at 261

.

       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020                                     Page 13 of 24
               at trial. If, based on these facts, the defendant’s actions were “so
               compressed in terms of time, place, singleness of purpose, and
               continuity of action as to constitute a single transaction,” then
               the prosecutor may charge the offenses as alternative sanctions
               only. But if the defendant’s actions prove otherwise, a court may
               convict on each charged offense.

Id. at 253.

                                                Wadle-First Step

[31]   The first step in the Wadle test is to determine whether “either statute clearly

       permits multiple punishment, whether expressly or by unmistakable

       implication.” 

Wadle, 151 N.E.3d at 253

. “If the language of either statute

       clearly permits multiple punishment, either expressly or by unmistakable

       implication, the court's inquiry comes to an end and there is no violation of

       substantive double jeopardy.” 5

Id. at 248

(footnote omitted).


[32]   Here, we must examine the statutes for reckless homicide and dangerous

       possession of a firearm. Indiana Code Section 35-42-1-5 merely provides: “A

       person who recklessly kills another human being commits reckless homicide, a

       Level 5 felony.” Indiana Code Section 35-47-10-5(a) provides: “A child who

       knowingly, intentionally, or recklessly possesses a firearm for any purpose other

       than a purpose described in section 1 of this chapter commits dangerous

       possession of a firearm, a Class A misdemeanor.” Neither statute “clearly




       5
        This would seem to be a highly unusual circumstance. As an example, our Supreme Court noted: “Our tax
       code, for example, expressly permits the imposition of an excise tax on the delivery, possession, or
       manufacture of a controlled substance, ‘in addition to any criminal penalties’ imposed under Title 35.”
       

Wadle, 151 N.E.3d at 248

(quoting Ind. Code § 6-7-3-20).

       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020                      Page 14 of 24
       permits multiple punishment, whether expressly or by unmistakable

       implication.” 

Wadle, 151 N.E.3d at 253

. Accordingly, we must address

       Wadle’s second step to determine whether a double jeopardy violation exists

       here.


                                              Wadle-Second Step

[33]   Because neither statute clearly permits multiple punishments, we must address

       the second step of the Wadle test and “apply our included-offense statutes to

       determine whether the charged offenses are the same.”

Id. In this step,

we

       determine whether either offense is included in the other—"either inherently or

       as charged”—under the included-offense statutes.

Id. [34]

  Indiana Code Section 35-38-1-6 provides: “Whenever: (1) a defendant is

       charged with an offense and an included offense in separate counts; and (2) the

       defendant is found guilty of both counts; judgment and sentence may not be

       entered against the defendant for the included offense.” Indiana Code Section

       35-31.5-2-168 defines “included offense” as an offense that:


               (1) is established by proof of the same material elements or less
               than all the material elements required to establish the
               commission of the offense charged;


               (2) consists of an attempt to commit the offense charged or an
               offense otherwise included therein; or


               (3) differs from the offense charged only in the respect that a less
               serious harm or risk of harm to the same person, property, or
               public interest, or a lesser kind of culpability, is required to
               establish its commission.



       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020        Page 15 of 24
[35]   Subsection (1) is not implicated here. Reckless homicide and dangerous

       possession of a firearm are not established by any of the same material

       elements. Subsection (2) does not apply either because Brown was not charged

       with or convicted of any attempt crime. Finally, subsection (3) does not apply

       because reckless homicide and dangerous possession of a firearm differ in more

       respects than just the degree of harm or culpability required. Each offense

       requires some conduct the other does not. See, e.g., Diaz v. State, ___ N.E.3d __,

       No. 20A-CR-203, slip op. at 10 (Ind. Ct. App. Oct. 2, 2020).


[36]   Because neither reckless homicide nor dangerous possession of a firearm is

       included in the other, pursuant to Wadle, Brown’s convictions do not constitute

       double jeopardy. 

Wadle, 151 N.E.3d at 153

(“If neither offense is included in

       the other (either inherently or as charged), there is no violation of double

       jeopardy.”). According to Wadle, there is no need to further examine the

       specific facts of the case under the third step of the test—whether the

       defendant’s actions were “so compressed in terms of time, place, singleness of

       purpose, and continuity of action as to constitute a single transaction.”

Id. Wadle-Third Step [37]

  Even if we analyze the third step of the Wadle test, however, we also do not find

       a double jeopardy violation. Under the third step, we “must examine the facts

       underlying those offenses, as presented in the charging instrument and as

       adduced at trial” to determine whether “the defendant’s actions were ‘so

       compressed in terms of time, place, singleness of purpose, and continuity of

       action as to constitute a single transaction.’” 

Wadle, 151 N.E.3d at 253

.




       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020      Page 16 of 24
[38]   “If the facts show two separate and distinct crimes, there’s no violation of

       substantive double jeopardy, even if one offense is, by definition, “included” in

       the other.”

Id. at 249.

“But if the facts show only a single continuous crime,

       and one statutory offense is included in the other, then the prosecutor may

       charge these offenses only as alternative (rather than as cumulative) sanctions.”

Id. “The State can

rebut this presumption only by showing that the statute—

       either in express terms or by unmistakable implication—clearly permits

       multiple punishment.”

Id. at 249-50. [39]

  The charging information for murder alleged that Brown knowingly or

       intentionally killed Garner. The jury, however, found Brown guilty of the

       lesser-included offense of reckless homicide, which required the State to prove

       that Brown recklessly killed Garner. In support of this charge, the State argued

       that Brown pulled the trigger on his firearm inside a vehicle and that the bullet

       entered the back of Garner’s head, killing Garner.


[40]   As for the dangerous possession of a firearm charge, the charging information

       alleged that, “on or about January 16, 2019”, Brown, “being under the age of

       eighteen (18) years, to-wit: 16 years of age, did knowingly, intentionally, or

       recklessly possess a firearm for any purpose other than a purpose described in

       section 1 of this chapter.” Appellant’s App. Vol. II p. 72. The evidence

       adduced at trial and argued by the State during closing arguments demonstrated

       the following facts to support the charge for dangerous possession of a firearm:

       Atterbury and Kolasa witnessed Brown with the firearm in January; sixteen-

       year-old Brown purchased the firearm because his brother had recently been

       murdered; Brown did not take any safety courses regarding the use of firearms;


       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020    Page 17 of 24
       after purchasing the firearm, Brown shot the firearm four times in tribute to his

       brother; on January 16, 2019, Brown was carrying the firearm in his waistband.

       Tr. Vol. V p. 189.


[41]   The State used different, unrelated facts to support each of the charges. The

       dangerous possession of a firearm charge was supported by facts related to

       Brown’s actions with the firearm before the shooting of Garner. Reckless

       homicide was supported by Brown pulling the trigger of the firearm in Garner’s

       vehicle, killing Garner. Brown’s actions were not “so compressed in terms of

       time, place, singleness of purpose, and continuity of action as to constitute a

       single transaction.” See 

Wadle, 151 N.E.3d at 253

. Accordingly, Brown’s

       convictions did not violate the prohibition against double jeopardy.


                                  V. Abuse of Discretion in Sentencing

[42]   Brown argues that the trial court abused its discretion when it sentenced him.

       “Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal only for an abuse of discretion.” Phipps v. State, 

90 N.E.3d 1190

, 1197 (Ind. 2018) (quoting Anglemyer v. State, 

868 N.E.2d 482

, 490 (Ind.

       2007), clarified on reh’g, 

875 N.E.2d 218

(Ind. 2007)). An abuse occurs only if

       the decision is clearly against the logic and effect of the facts and circumstances

       before the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom. Schuler v. State, 

132 N.E.3d 903

, 904 (Ind. 2019).


[43]   A trial court may abuse its discretion in a number of ways, including: (1) failing

       to enter a sentencing statement at all; (2) entering a sentencing statement that

       includes aggravating and mitigating factors that are unsupported by the record;

       (3) entering a sentencing statement that omits reasons that are clearly supported

       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020     Page 18 of 24
       by the record; or (4) entering a sentencing statement that includes reasons that

       are improper as a matter of law. Ackerman v. State, 

51 N.E.3d 171

, 193 (Ind.

       2016), cert. denied, 

137 S. Ct. 475

(2016). This Court presumes that a court that

       conducts a sentencing hearing renders its decision solely on the basis of relevant

       and probative evidence. 

Schuler, 132 N.E.3d at 905

. “When an abuse of

       discretion occurs, this Court will remand for resentencing only if ‘we cannot say

       with confidence that the trial court would have imposed the same sentence had

       it properly considered reasons that enjoy support in the record.’” 

Ackerman, 51 N.E.3d at 194

(quoting 

Anglemyer, 868 N.E.2d at 491

).


[44]   The trial court here found one mitigating factor—Brown’s age at the time of the

       offense. Brown was sixteen years old. The trial court found the following

       aggravators: (1) Brown’s juvenile adjudications “are significant and reflect a

       fundamental disdain for authority and an acceptance of violence as a viable

       option”; (2) Brown’s lack of remorse; (3) the imposition of the advisory

       sentence would depreciate the seriousness of the crime; (4) nine prior attempts

       at rehabilitation failed; and (5) Brown’s character and “apparent affinity for and

       possible affiliation with” a gang. Appellant’s App. Vol. III pp. 15-16.


[45]   Brown contends that the trial court failed to consider the following mitigating

       circumstances: (1) the circumstances were unlikely to reoccur; (2) Brown would

       likely respond better to a shorter sentence; (3) Brown took the stand and

       accepted responsibility; and (4) Brown was remorseful. Brown also argues that

       the trial court abused its discretion by stating that Brown had a high probability

       to reoffend where the PSI indicated that he had a moderate risk of reoffending.




       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020      Page 19 of 24
[46]   The trial court “is not obligated to accept the defendant’s contentions as to what

       constitutes a mitigating circumstance or to give the proffered mitigating

       circumstances the same weight the defendant does.” Weisheit v. State, 

26 N.E.3d 3

, 9 (Ind. 2015), cert. denied, 

136 S. Ct. 901

(2016). “An allegation that

       the trial court failed to identify or find a mitigating factor requires the defendant

       to establish that the mitigating evidence is both significant and clearly supported

       by the record.” 

Anglemyer, 868 N.E.2d at 493

.


[47]   Given Brown’s extensive juvenile history and lack of responsiveness to many

       services, including probation and nonsecure detention, Brown has failed to

       demonstrate that the circumstances were unlikely to reoccur, that Brown would

       likely respond better to a shorter sentence, or that Brown had a moderate risk of

       reoffending. The trial court was not obligated to accept the probation

       department’s assessment that Brown had a moderate risk of reoffending. As for

       Brown’s acceptance of responsibility and remorse, the trial court specifically

       found Brown’s lack of remorse as an aggravating factor. The trial court noted

       that Brown’s “in-court apology . . . was perfunctory and a token one at best.”

       Tr. Vol. VI p. 51. Brown has failed to demonstrate that any of the proposed

       mitigating circumstances were both significant and clearly supported by the

       record. The trial court did not abuse its discretion when it sentenced Brown.


                                         VI. Inappropriate Sentence

[48]   Brown argues that his sentence of six and one-half years is inappropriate. The

       Indiana Constitution authorizes independent appellate review and revision of a

       trial court’s sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v. State,

       

145 N.E.3d 783

, 784 (Ind. 2020). Our Supreme Court has implemented this


       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020        Page 20 of 24
       authority through Indiana Appellate Rule 7(B), which allows this Court to

       revise a sentence when it is “inappropriate in light of the nature of the offense

       and the character of the offender.” Our review of a sentence under

       Appellate Rule 7(B) is “not a matter of second guessing” the trial

       court’s sentence; rather, our review is “very deferential to the trial

       court.” Conley v. State, 

972 N.E.2d 864

, 876 (Ind. 2012). We exercise

       our authority under Appellate Rule 7(B) only in “exceptional cases, and its

       exercise ‘boils down to our collective sense of what is appropriate.’” Mullins v.

       State, 

148 N.E.3d 986

, 987 (Ind. 2020) (quoting Faith v. State, 

131 N.E.3d 158

,

       160 (Ind. 2019)).


[49]   “‘The principal role of appellate review is to attempt to leaven the

       outliers.’” McCain v. State, 

148 N.E.3d 977

, 985 (Ind. 2020) (quoting Cardwell v.

       State, 

895 N.E.2d 1219

, 1225 (Ind. 2008)). The point is “not to achieve a

       perceived correct sentence.”

Id. “Whether a sentence

should be

       deemed inappropriate ‘turns on our sense of 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.’”

Id. (quoting Cardwell, 895

N.E.2d at

       1224). Deference to the trial court’s sentence “should prevail unless overcome

       by compelling evidence portraying in a positive light the nature of the offense

       (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 

29 N.E.3d 111

, 122 (Ind. 2015).


[50]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the


       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020     Page 21 of 24
       crime committed. Fuller v. State, 

9 N.E.3d 653

, 657 (Ind. 2014). Brown was

       convicted of a Level 5 felony and a Class A misdemeanor. The sentence for a

       Level 5 felony is “a fixed term of between one (1) and six (6) years, with the

       advisory sentence being three (3) years.” Ind. Code § 35-50-2-6(b). The trial

       court sentenced Brown to five and one-half years for the reckless homicide

       conviction. The sentence for a Class A misdemeanor is “a fixed term of not

       more than one (1) year.” Ind. Code § 35-50-3-2. The trial court sentenced

       Brown to one year for the dangerous possession of a firearm conviction. The

       trial court then ordered that the sentences be served consecutively, for an

       aggregate sentence of six and one-half years.


[51]   Our analysis of the “nature of the offense” requires us to look at the nature,

       extent, and depravity of the offenses. Sorenson v. State, 

133 N.E.3d 717

, 729

       (Ind. Ct. App. 2019), trans. denied. After the shooting death of his brother,

       sixteen-year-old Brown illegally purchased a handgun. While hanging out with

       Garner and Kolasa, Brown decided to bring his handgun with him. Brown

       placed the loaded handgun in the pocket of the seat in Garner’s vehicle with the

       safety disabled. While the trio was waiting on Atterbury, Brown decided to

       remove the handgun from the pocket with his left hand, even though he is right-

       handed. Brown pulled the gun from the pocket with his finger on the trigger

       and discharged the weapon. The bullet struck the back of Garner’s head, killing

       him. Although Brown called 911, he repeatedly claimed that Garner was shot

       in a drive-by shooting. Brown also asked witnesses to lie about the shooting.


[52]   On review, our analysis of the character of the offender involves a “broad

       consideration of a defendant’s qualities,” Adams v. State, 

120 N.E.3d 1058

, 1065


       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020     Page 22 of 24
       (Ind. Ct. App. 2019), including the defendant’s age, criminal history,

       background, and remorse. James v. State, 

868 N.E.2d 543

, 548-59 (Ind. Ct. App.

       2007). Brown argues that he accepted responsibility and was remorseful, but as

       previously noted, the trial court found Brown’s lack of remorse as an

       aggravating factor.


[53]   “The significance of a criminal history in assessing a defendant’s character is

       based on the gravity, nature, and number of prior offenses in relation to the

       current offense.” Boling v. State, 

982 N.E.2d 1055

, 1060 (Ind. Ct. App.

       2013). Even a minor criminal history is a poor reflection of a defendant’s

       character. Moss v. State, 

13 N.E.3d 440

, 448 (Ind. Ct. App. 2014), trans. denied.


[54]   Brown has an extensive juvenile history. In 2014, Brown was arrested for

       battery with bodily injury, which resulted in a referral to the Family and Youth

       Intervention Program. In 2016, Brown received a delinquency adjudication for

       acts that would be robbery, Level 3 felony, and criminal confinement, Level 6

       felony, if committed by an adult. Brown received a forty-five-day suspended

       commitment in secure detention, GPS monitoring for thirty days, and

       probation; and Brown was also ordered to complete home-based therapy, a

       truancy termination program, and a psychiatric evaluation. Brown repeatedly

       violated his probation; he was suspended from school and ultimately expelled;

       he ran away; and he smoked marijuana. In 2017, Brown was adjudicated as a

       delinquent for escape, a Level 6 felony; criminal mischief, Class B

       misdemeanor; and being a runaway. He was again placed on probation, which

       he violated. Arrests for being a runaway and disorderly conduct in 2017 led to




       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020      Page 23 of 24
       modifications of a previous disposition. The State also presented evidence that

       Brown was affiliated with a gang.


[55]   Given Brown’s extensive juvenile history and the reckless choices made here,

       we cannot say that the sentence imposed by the trial court is inappropriate in

       light of the nature of the offenses and the character of the offender.


                                                  Conclusion
[56]   Brown’s argument that the trial court erred by excluding his mother from the

       courtroom fails. The trial court did not err by allowing the jury to examine and

       pull the trigger on the firearm during deliberations. The evidence is sufficient to

       sustain Brown’s conviction for reckless homicide. Brown’s convictions for

       reckless homicide and dangerous possession of a firearm do not violate the

       prohibition against double jeopardy. Moreover, the trial court did not abuse its

       discretion when it sentenced Brown, and Brown’s sentence is not inappropriate.

       We affirm.


[57]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020     Page 24 of 24

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