MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 30 2020, 9:44 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office Attorney General of Indiana Brooklyn, Indiana Josiah Swinney Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dylan M. Morgan, December 30, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-634 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff. Judge Trial Court Cause No. 84D01-1808-MR-2779
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 1 of 19 [1] Dylan M. Morgan appeals his convictions and sentence for murder, altering the
scene of a death, and obstruction of justice as level 6 felonies, possession of
marijuana as a class B misdemeanor, and possession or consumption of alcohol
as a class C misdemeanor. He raises three issues which we restate as:
I. Whether the trial court abused its discretion in denying his motion related to alleged juror misconduct;
II. Whether the evidence is sufficient to sustain his conviction for murder; and
III. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
We affirm.
Facts and Procedural History
[2] On the evening of August 4, 2018, Gage Eup, who was eighteen years old,
attended a party, and around midnight, Eup’s friend, Bryce Weir, arrived. At
that time, Morgan, Sabrei Neace, Gary Flowers, and others were also present.
Morgan and others were drinking alcohol and smoking marijuana. At some
point, Morgan, Eup, and Weir were the only individuals remaining at the
house, and they took turns playing music. Morgan did not like the music Eup
played and stated: “Change that song or I’ll go get my gun.” Transcript
Volume III at 51. Weir and Eup, who were under the influence, thought it was
hilarious, and told him to do it. Morgan said “Alright,” walked to his back
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 2 of 19 room, returned with a gun, and said, “Change that f----- song now.” Id. at 51-
52. Eup changed the song and was still laughing. 1
[3] Morgan removed the magazine from the gun and a bullet ejected. Morgan and
Eup looked for the bullet, and Weir then “kind of zoned out.” Id. at 90. At
some point, Morgan said, “Hey, look at this,” or “Hey, watch this.” Id. at 54.
Morgan was standing and pointing the gun at Eup with his arm fully extended
while Eup was looking at the television. Morgan pulled the trigger, and Weir
observed Eup “standing there bleeding from two different directions.” Id. at 56.
Eup “kind of wabbled” and fell backwards. Id.
[4] Weir “went into shock,” gathered his stuff, and told Morgan that he needed to
leave. Id. at 57. Morgan told him that “we can’t speak of it, and that we gotta
say it was suicide.” Id. Weir told him, “Alright man. We can say that,” and
“All I gotta do is go.” Id. Before leaving, Weir did not see Morgan make any
effort to help Eup. As Weir was leaving, Morgan said: “You aren’t gonna say
nothin are you?” Id. at 58. Weir said “No,” ran to a safe distance, and called
the police. Id.
[5] Morgan called Neace and told her: “[Eup] shot himself, I don’t know what to
do.” Id. at 109. Neace and Flowers returned, and Neace picked up the firearm,
1 Weir testified: “[Eup] is still laughing. But at the same time, I mean, you got a gun pointing at you. You’re not laugh laughing, you’re just kind of just like, you know, bring the tension down I would assume.” Transcript Volume III at 52. On cross-examination, Weir testified that Eup was “not laughing as much now that the gun was out.” Id. at 72.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 3 of 19 which was on Eup’s left side near his torso, and threw it on the couch. Morgan
placed the table that had been used for beer pong into the kitchen, Neace asked
him why he was moving the table, and Morgan “didn’t really say anything,”
“just kind of shrugged it off and just kept cleaning.” Id. at 114. Morgan then
picked up the firearm, took it into the kitchen, started cleaning it under water
from the faucet, and said that “they couldn’t know that it was his gun because
then they would think that he hurt” Eup. Id. Neace said she was going to call
the police, and Morgan kept saying “not yet.” Id. at 117. Neace found her
phone and called 911. Morgan said to tell the police that Eup brought the gun
in his backpack, was waving it around and playing with it, and shot himself.
Eup died as a result of the gunshot wound.
[6] Meanwhile, Terre Haute Police Patrolman Tell Howson was dispatched to
Weir’s location, and Weir, who was short of breath, identified himself. Weir
told him the address where the incident had occurred, which was about .6 to .8
miles away, and Patrolman Howson radioed the location to other officers.
Other officers arrived at the residence and transported Morgan to the police
station.
[7] On August 5, 2018, Terre Haute Police Detectives Kenneth Murphy and David
Thompson interviewed Morgan. Morgan stated that Eup pulled a handgun out
of his backpack, everyone told him to put it away, he flashed it around, cocked
the gun, waved it around, and shot himself. He stated he did not shoot a gun
that night and was alone with Eup when Eup shot himself. Upon questioning
by Detective Murphy, Morgan stated that he took a young kid’s life, was just
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 4 of 19 messing around, and was “just trying to f--- with him.” State’s Exhibit 18 at
11:57-12:00. He stated that he pulled the trigger because he did not think there
was a bullet in the chamber and that they did not have an argument prior to the
shooting. Upon questioning, he stated that he told Eup to “change the f------
music.” Id. at 14:10-14:12. Upon further questioning, Morgan admitted
someone else was in the house when the shooting occurred, that he told the
other person he needed to stay there and they needed to call the police, but the
other person left.
[8] At one point, Morgan stated that he should not have lied and he should have
just told them that there was someone else present. Detective Thompson
stated:
Yeah, you should have. Because it makes everything from here on out hard to believe. Do you know what I think happened? I think you told him when he was playing that song to turn the s*** off. And I think you told him to turn the s*** off or you were going to kill him.
Id. at 36:50-37:07. Morgan stated that he did not say that but he could
understand why he would think that.
[9] On August 8, 2018, the State charged Morgan with: Count I, murder; Count II,
reckless homicide as a level 5 felony; Count III, altering the scene of death as a
level 6 felony; Count IV, obstruction of justice as a level 6 felony; Count V,
possession of marijuana as a class B misdemeanor; and Count VI, illegal
consumption of an alcoholic beverage as a class C misdemeanor.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 5 of 19 [10] During voir dire, the court asked if any of the potential jurors knew Morgan or
his counsel, and J.B., a potential juror indicated she knew Attorney Paul
Jungers and was casual friends with him and his wife. J.B. also indicated that
Attorney Jungers’ wife was a pharmaceutical sales rep and called on her at her
job. Upon questioning by the court, J.B. indicated she could be fair to the
State, keep an open mind, and not be biased in favor of Attorney Jungers.
[11] The prosecutor read a list of witnesses the State intended to call and did not
mention Detective Thompson. The court asked if anyone knew the witnesses
and questioned them if they answered affirmatively. Later during voir dire, J.B.
indicated she could follow the instruction to not allow any bias or sympathy to
play a role in arriving at a verdict and that, if the State failed to prove one
element beyond a reasonable doubt, she would find Morgan innocent.
[12] During his opening statement, defense counsel asked the jury to return a verdict
of not guilty on the murder charge and asked the jury to convict Morgan of
reckless homicide. The State presented the testimony of Weir, Neace, Flowers,
and Detective Murphy. The court admitted the recorded interview of Morgan
without objection.
[13] Mitzie Templeton, a forensic firearm tool mark examiner with the Indiana State
Police Laboratory, testified that the firearm had a manual safety and a
magazine safety, which both operated as designed, and that nothing prevented
the firearm from functioning properly. She also indicated that no functional
defects were found, it test fired normally, and everything operated as designed.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 6 of 19 On cross-examination, Templeton indicated that she had seen the report
prepared by John Nixon. She testified that the magazine was missing parts and
broken but “functionally it works.” Transcript Volume III at 220. When asked
if the tape on the magazine appeared to impede the ability to drop the magazine
out or release it, she answered: “No, it was, it was pretty far down, so I didn’t
see where it affected anything.” Id. at 222.
[14] After the State rested, the defense presented the testimony of Nixon, who had a
degree in mechanical engineering and was an NRA certified firearms instructor.
He testified that he examined the High Point 9mm pistol and that the floor plate
of the magazine came off after several loadings, and he obtained an additional
magazine to continue his testing. He testified that the gun had a design flaw
“[b]ecause the magazine is a long way out at the point that the safety is
activated or deactivated.” Transcript Volume IV at 33. He disagreed with
Templeton’s statement that the only way the gun is completely safe is when the
magazine is completely removed. When asked why he disagreed, he stated that
the magazine disconnect safety was a mechanical device and a shooter should
never trust any mechanical safety. He indicated that the trigger could pull with
the magazine removed if there was debris. He also testified that he had seen
people “pull the slide back and a round is ejected from the chamber,” “then
they release the slide and they think the gun is unloaded,” “[t]hey take the
magazine out next, not realizing that they’ve loaded a fresh round into the
chamber, so there’s still one in there.” Id. at 37.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 7 of 19 [15] On cross-examination, he indicated that he found no defects in the gun that
would impact the ability of it to fire. He also testified that the magazine
disconnect was working properly when he tested it and he did not fire the gun
at all during his testing. He testified that “[i]f the magazine is removed first,
and then the slide is cycled, and if you’re sure that the round comes out of the
chamber, then the gun is completely empty.” Id. at 53. Upon questioning by
the court regarding questions from the jury, he testified that “if you’ve got the
thumb safety in the ‘on’ position, no matter what the position is on the
magazine safety, the gun will not fire.” Id. at 56.
[16] During deliberations, the jury asked to review a portion of Morgan’s video
statement, and the recorded interview was played. The jury returned to
deliberations and asked “if Count 1 is guilty, is Count 2 guilty as well? Should
be [sic] pick one or the other?” Id. at 96. The court informed the jury that if the
State “proves the defendant guilty of murder you cannot find the defendant
guilty of reckless homicide.” Id. at 97.
[17] After the jury reached a verdict, the court asked if there was a foreperson, and
J.B. identified herself. The jury found Morgan not guilty of Count II, reckless
homicide, and guilty of the remaining charges. The court discharged the jury.
[18] On January 24, 2020, Morgan filed a Motion to Correct Error alleging juror
misconduct and insufficient evidence of murder. Morgan’s counsel alleged that
he learned J.B. personally knew Detective Thompson and failed to disclose the
relationship, the parties were unable to question her about the relationship and
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 8 of 19 potential bias, and Morgan was likely harmed. He also asserted that it was
likely that J.B. intentionally concealed this information because she notified the
court about knowing a different witness during the trial but did not notify the
court about knowing Detective Thompson. He stated that J.B. and her
husband were friends with Detective Thompson on Facebook and commented
on his posts. He learned through online research that J.B. was a nurse
practitioner at a medical practice where Detective Thompson’s wife worked as
a doctor and that they had worked together at the same practice for several
years. He argued that J.B. “could have been influence[d]/biased in her
impartially [sic] simply by the fact that she would have to face her co-worker
after acquitting the Defendant (had she done so) on her co-worker Dr.
Thompson’s husbands’ case, which certainly could create an awkward work
environment.” Appellant’s Appendix Volume II at 183. He requested a new
trial or that the juror be summoned for a hearing or in camera interview.
[19] On January 27, 2020, the State filed a response. On February 13, 2020, the
court denied Morgan’s motion. With respect to the claim of juror misconduct,
the court concluded that “[t]he allegations of an appearance of a relationship that
could be construed or interpreted to have compromised her partiality is not
‘specific, substantial evidence’ that justifies a new trial or a hearing to explore
potential bias and prejudice.” Id. at 200.
[20] On February 24, 2020, the court held a sentencing hearing. Eup’s mother,
younger brother, and father read statements to the court. Jordan Cleeton,
Morgan’s older brother, testified that Morgan’s mother was killed in a
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 9 of 19 motorcycle accident in 2017 and Morgan received mental health treatment and
attempted suicide multiple times. On cross-examination, Cleeton testified that
Morgan was nineteen years old when his mother was killed, he was not aware
Morgan used cocaine, and he agreed that Morgan’s marijuana use was not the
result of losing his mother.
[21] Cynthia Hurt, an adult education teacher, testified that she taught at the jail and
Morgan came to her as a student in September 2018. She testified Morgan was
very bright, an exemplary student, and had qualified to take the high school
equivalency exam.
[22] Morgan stated he was sorry to the Eup family and that he did not intend to
bring Eup any harm, was very reckless, childish, and stupid, and was going to
obtain his GED, further his education, and use whatever program was available
to him.
[23] The prosecutor argued for a sentence of fifty-five years on the murder
conviction. Morgan’s counsel asked for the minimum sentence of forty-five
years with any time in excess of that suspended.
[24] The court stated:
I will tell you this, what stands out to me, from having observed that statement that was played in front of the jury. It really gets down to what the State was saying and that was, uh your attempt, your repeated attempts, when you would hit a blockade, when one false statement, false statement didn’t seem like it was panning out. How quickly you jumped into the next false statement. Uh, and when that didn’t pan out, how quickly you Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 10 of 19 were able to, to jump into the next false narrative. Uh and that was something that maybe you were in a panic at the scene maybe, I don’t know. Uh, but quite frankly when [the prosecutor] said you were able to turn the tears on and off, I didn’t see any tears. I heard a lot of what impressed me to be, uh effort on your part to appear upset. But, that’s not, that’s not what I concluded what was going on, when I watched it. There was a lot of manipulation going on and to me manipulation in the midst of a panic, trying to figure out what you are going to do, is a lot different if there was true remorse and true sorrow and true shock about what happened as opposed to just trying to get the best life possible and to that extend, [sic] I agree with the State’s argument on that. Uh, I can’t consider, uh that what an impacted a lesson, uh an advisory sentence would have in terms of a dimensioning [sic] the serious of the crime. I can’t consider that in aggravation. I can consider in response to a request for a mitigated sentence. Uh and I am, I am considering it in that light. On balance I attend [sic] to agree with the State. Uh, I attend [sic] to agree with the State that the advisory sentence is appropriate in this case.
Id. at 148-149.
[25] In its order, the court found that “statutory aggravating factors under I.C. § 35-
38-1-7.1(a)(2) and (a)(6) exist, but [did] not find the aggravating factor under
(a)(4) is supported.” 2 Appellant’s Appendix Volume II at 203. The court found
2 Ind. Code § 35-38-1-7.1(a) provides that “[i]n determining what sentence to impose for a crime, the court may consider the following aggravating circumstances: . . . (2) The person has a history of criminal or delinquent behavior . . . (4) The person: (A) committed a crime of violence (IC 35-50-1-2); and (B) knowingly committed the offense in the presence or within hearing of an individual who: (i) was less than eighteen (18) years of age at the time the person committed the offense; and (ii) is not the victim of the offense . . . (6) The person has recently violated the conditions of any probation, parole, pardon, community corrections placement, or pretrial release granted to the person.”
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 11 of 19 that the evidence did not support Morgan’s “proffer in mitigation under I.C. §
35-38-1-7.1(b)(2), (4) and (7)” and that “[t]he nature and circumstances
surrounding the crimes at issue also undercut these factors.” 3 Id. The court did
not find mitigation in Morgan’s age, but assigned “some mitigating weight to
[Morgan’s] expression of remorse, that he has taken steps to obtain his GED,
and to his history of mental health issues.” Id. The court stated that, “[o]n
balance, the court believes the advisory sentence in this case is appropriate” and
“[t]o mitigate the sentence below the advisory would diminish the seriousness
of defendant’s crime.” Id. The court sentenced Morgan to concurrent
sentences of: fifty-five years for Count I, murder; one year on Count III, altering
the scene of a death, and Count IV, obstruction of justice; 180 days on Count V,
possession of marijuana; and sixty days on Count VI, illegal possession of
alcohol. The court’s order also stated that, “[w]hen [Morgan] has completed
forty-five (45) years of the executed sentence, he may request the court to
consider modification.” Id. at 204.
Discussion
I.
3 Ind. Code § 35-38-1-7.1(b) provides that the court “may consider the following factors as mitigating circumstances or as favoring suspending the sentence and imposing probation . . . (2) The crime was the result of circumstances unlikely to recur . . . (4) There are substantial grounds tending to excuse or justify the crime, though failing to establish a defense . . . (7) The person is likely to respond affirmatively to probation or short term imprisonment.”
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 12 of 19 [26] The first issue is whether the trial court abused its discretion in denying
Morgan’s motion related to alleged juror misconduct. Generally, proof that a
juror was biased against the defendant or lied on voir dire entitles the defendant
to a new trial. Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988) (citing
McDaniel v. State, 268 Ind. 380, 375 N.E.2d 228, 232 (1978); Berkman v. State,
459 N.E.2d 44, 45 (Ind. Ct. App. 1984), trans. denied). A defendant seeking a
hearing on juror misconduct must first present some specific, substantial
evidence showing a juror was possibly biased. Id. (citing Berkman, 459 N.E.2d
at 46). The specific, substantial evidence requirement “was developed as a
bulwark against post-trial juror harassment.” Easler v. State, 131 N.E.3d 584,
589 (Ind. 2019). “If jurors who returned a guilty verdict and were discharged
could be hauled back to a hearing about their alleged bias or misconduct based
on mere blanket or conclusory allegations, there would be a very real risk of
juror harassment.” Id. In order to warrant a new trial, there must be a showing
that the misconduct was gross, and that it probably harmed the defendant.
Lopez, 527 N.E.2d at 1130 (citing Reed v. State, 479 N.E.2d 1248, 1251 (Ind.
1985); Gann v. State, 263 Ind. 297, 300, 330 N.E.2d 88, 91 (1975)). The issue of
juror misconduct is a matter within the trial court’s discretion. Id. (citing Bixler
v. State, 471 N.E.2d 1093, 1098 (Ind. 1984), cert. denied, 474 U.S. 834, 106 S. Ct.
106 (1985)).
[27] Morgan does not allege that J.B. lied during voir dire. While Detective
Thompson was one of the detectives interviewing Morgan in the recorded
interview, he did not testify as a witness. To the extent Morgan asserts J.B. was
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 13 of 19 Facebook friends with Detective Thompson, we note that “merely being friends
on Facebook does not, per se, establish a close relationship from which bias or
partiality on the part of a juror may reasonably be presumed.” See Slaybaugh v.
State, 44 N.E.3d 111, 118 (Ind. Ct. App. 2015) (quoting McGaha v.
Commonwealth, 414 S.W.3d 1, 6 (Ky. 2013)), aff’d, 47 N.E.3d 607 (Ind. 2016).
Morgan did not specify the content of the comments by J.B. or her husband on
Detective Thompson’s Facebook page, the time such comments occurred, or
that the comments revealed any knowledge of the case. We also note that
during voir dire, the prosecutor asked J.B. if she could follow the instruction not
to allow any bias or sympathy play a role in arriving at a verdict, and she
answered affirmatively. Defense counsel also asked J.B.: “If you felt that [the
State] didn’t prove one element beyond a reasonable doubt, what, what is a
juror supposed to do if they’re following their oath?” Transcript Volume II at
84. She answered: “I would say innocent then.” Id. at 85. Under the
circumstances, we cannot say that Morgan presented specific, substantial
evidence showing J.B. was possibly biased, that he was probably harmed, or
that the court abused its discretion.
II.
[28] The next issue is whether the evidence is sufficient to sustain Morgan’s
conviction for murder. Morgan argues that the evidence was insufficient to
prove that he was aware of a high probability that he would kill Eup when he
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 14 of 19 pointed the gun at him. He argues that he must have only partially inserted the
magazine into the handgun and assumed that the handgun would not fire
because the magazine was not fully inserted and “yet the magazine was still far
enough in that it disengaged the safety mechanism, allowing the handgun to
fire.” Appellant’s Brief at 22. He asserts that the magazine was not fully
inserted when the police found the gun and it had a round in the chamber
indicating that the magazine was inserted far enough that the gun had
chambered a new round after it was fired.
[29] When reviewing claims of insufficiency of the evidence, we do not reweigh the
evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,
817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the
reasonable inferences therefrom that support the verdict. Id. We will affirm the
conviction if there exists evidence of probative value from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. Id.
[30] Ind. Code § 35-42-1-1 governs the crime of murder and provides that a person
who knowingly or intentionally kills another human being commits murder, a
felony. “A person engages in conduct ‘intentionally’ if, when he engages in the
conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2. “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.” Id. The Indiana Supreme
Court has “unequivocally determined that the requisite intent to kill may be
inferred from the use of a deadly weapon in a manner likely to cause death or
great bodily harm .” Maxwell v. State, 731 N.E.2d 459, 462 (Ind. Ct. App. 2000)
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 15 of 19 (citing Bartlett v. State, 711 N.E.2d 497, 500 (Ind. 1999); Wilson v. State, 697
N.E.2d 466, 475 (Ind. 1998), reh’g denied; Barany v. State, 658 N.E.2d 60, 65
(Ind. 1995); Shelton v. State, 602 N.E.2d 1017, 1022 (Ind. 1992); Johnson v. State,
455 N.E.2d 932, 936 (Ind. 1983)), trans. denied.
[31] The evidence shows that Morgan was familiar with the gun. Weir testified that
Morgan showed him the gun roughly two weeks prior to the shooting “kind of
like you would something that you hold very proudly to yourself, you would
want to show it off.” Transcript Volume III at 61. Neace testified that she had
seen Morgan fire the High Point on New Year’s 2018, he “got [the firearm] out
quite often,” and that “anytime anyone new came over he would show them
that he had a gun.” Id. at 100. Flowers testified that Morgan brought out the
gun when they hung out and “just messed with it and cleaned it and stuff.” Id.
at 139. He also stated that he knew Morgan “made sure the safety was on most
of the time.” Id. Templeton, the forensic firearm tool mark examiner, testified
that nothing prevented the firearm from functioning properly.
[32] After Eup started playing music that Morgan did not like, Morgan stated:
“Change that song or I’ll go get my gun.” Id. at 51. Morgan returned with a
gun and said: “Change that f----- song now.” Id. at 51-52. At some point later,
Morgan pointed the gun at Eup and pulled the trigger. We conclude that the
State presented evidence of probative value from which a reasonable jury could
have determined beyond a reasonable doubt that Morgan was guilty of murder.
III.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 16 of 19 [33] The next issue is whether Morgan’s sentence is inappropriate in light of the
nature of the offenses and his character. Morgan argues his culpability did not
rise to the level of intentional murder, his criminal history included a single
misdemeanor, and he was remorseful, struggled with anxiety and depression,
and was only twenty years old at the time of the offense.
[34] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [we find] that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Under this rule, the burden is on the defendant to persuade
the appellate court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
[35] Ind. Code § 35-50-2-3 provides that a person who commits murder shall be
imprisoned for a fixed term of between forty-five and sixty-five years, with the
advisory sentence being fifty-five years. Ind. Code § 35-50-2-7 provides that a
person who commits a level 6 felony shall be imprisoned for a fixed term of
between six months and two and one-half, with the advisory sentence being one
year. Ind. Code § 35-50-3-3 provides that a person who commits a class B
misdemeanor shall be imprisoned for a fixed term of not more than 180 days.
Ind. Code § 35-50-3-4 provides that a person who commits a Class C
misdemeanor shall be imprisoned for a fixed term of not more than sixty days.
[36] Our review of the nature of the offenses reveals that Morgan smoked
marijuana, retrieved his gun after Eup played music he did not like, told him to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 17 of 19 “[c]hange that f----- song now,” and ultimately pointed the gun at him and
pulled the trigger. Transcript Volume III at 52. He told Weir that they had to
say it was suicide. He began cleaning and cleaned the firearm under the faucet
instead of calling 911. He told Neace that Eup shot himself, to tell the police
that story, and not to call 911 yet.
[37] Our review of the character of the offender reveals that Morgan, who was born
in 1998, was charged with possession of marijuana as a class B misdemeanor
and possession of paraphernalia as a class C misdemeanor in 2016. On August
24, 2017, he “was placed on pre-trial diversion and placed on 6 months
informal probation, 40 hours of community service and complete marijuana
class.” Appellant’s Appendix Volume II at 210. The presentence investigation
report (“PSI”) indicates that he failed to complete the class and community
service, was sentenced on March 22, 2018, to 180 days and placed on
probation, and the charge of possession of paraphernalia was dismissed. The
PSI states that Morgan had “a ‘great’ childhood growing up with his father in a
home that was free from abuse, neglect and molestation.” Id. at 211. Morgan
had a past relationship with Neace which produced one child. He last attended
Terre Haute North Vigo High School, but did not graduate and was not
employed prior to his arrest. He reported having been diagnosed with
depression and anxiety and attempted suicide after his mother died in 2017.
[38] Morgan reported first experimenting with alcohol and drugs at the age of
thirteen, admitted to using marijuana, pills, and cocaine, and that his drug of
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 18 of 19 choice was marijuana. He denied ever participating in substance abuse
programs but believed he would benefit from treatment.
[39] After due consideration, we conclude that Morgan has not sustained his burden
of establishing that his advisory sentence for murder served concurrently with
his other sentences is inappropriate in light of the nature of the offenses and his
character.
[40] For the foregoing reasons, we affirm Morgan’s convictions and sentence.
[41] Affirmed.
Vaidik, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-634 | December 30, 2020 Page 19 of 19