Court of Appeals of Indiana | Opinion 20A-CR-125 | November 19, 2020 Page 1 of 24

ATTORNEY FOR APPELLANT

Jennifer L. Koethe

Navarre, Florida

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Courtney Staton

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Javan D. Brown,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 19, 2020

Court of Appeals Case No.

20A-CR-125

Appeal from the LaPorte Superior 

Court

The Honorable Michael Bergerson, 

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.
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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] Dareon1 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.”
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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 
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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.
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[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 semiautomatic 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. 
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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.
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(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.
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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.
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[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 
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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 
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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 righthanded, 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 
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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-CR203, 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 
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[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 variety4

, 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.
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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). 
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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.
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[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.
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[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; sixteenyear-old Brown purchased the firearm because his brother had recently been 

murdered; Brown did not take any safety courses regarding the use of firearms; 
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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 
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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 20 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 21 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 
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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 righthanded. 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 23 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 
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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.