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