Opinion
24A-CR-981
12-30-2024
Nicholas Robert Saunders, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Michael J. Kyle Franklin, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Johnson Superior Court The Honorable Peter D. Nugent, Judge Trial Court Cause No. 41D02-2208-F1-27
ATTORNEY FOR APPELLANT
Michael J. Kyle Franklin, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE
Case Summary
[¶1] Following a jury trial, Nicholas Saunders was convicted of attempted murder, a Level 1 felony, and two counts of pointing a firearm, Level 6 felonies. Saunders' sentence was enhanced based on his use of a firearm for a total sentence of fifty years. The trial court also "merged" one of the pointing a firearm convictions with the attempted murder conviction. Saunders appeals and argues: (1) the trial court abused its discretion by admitting a prejudicial photograph at trial; (2) insufficient evidence supports his conviction because the State failed to prove that he acted with the requisite mens rea and failed to rebut his claim of self-defense; (3) the trial court committed fundamental error by calling a witness during the sentencing hearing; and (4) Saunders' sentence is inappropriate.
[¶2] We conclude the following: (1) any error in the admission of the photograph was harmless; (2) the State submitted sufficient evidence to prove that Saunders acted with the requisite mens rea and to rebut his claim of self-defense; (3) the trial court did not commit fundamental error by calling a witness during the sentencing hearing; and (4) Saunders' sentence is not inappropriate. We, however, remand with instructions that the trial court vacate the conviction for pointing a firearm, which the trial court merged, and to resentence Saunders for the other pointing a firearm conviction because the sentence for that offense as it stands is above the statutory maximum. Accordingly, we affirm in part and remand.
Issues
[¶3] Saunders raises four issues, which we expand and restate as the following five:
I. Whether the trial court abused its discretion by admitting a certain photograph at trial.
II. Whether sufficient evidence supports Saunders' conviction.
III. Whether the trial court committed fundamental error by calling a witness at the sentencing hearing.
IV. Whether sentencing errors require remand.
V. Whether Saunders' sentence is inappropriate.
Facts
[¶4] On August 7, 2022, nineteen-year-old Saunders asked his friend Miranda Lawson to drive him to Nashville, Indiana so he could sell a rifle. Miranda recently had an affair with a man named Jerry Jones. Jones and his wife, Amanda, decided to "work things out[,]" and Miranda "didn't take it too well." Tr. Vol. III p. 9.
[¶5] Saunders sold the rifle in Nashville. On their way home, he and Miranda drove past Jones' house several times and eventually pulled into the driveway. Jones and Amanda were outside in the driveway by their Jeep and truck. Miranda exited her vehicle, approached Amanda, and exchanged words with her, "trying to get [Amanda] to . . . fight her." Tr. Vol. II p. 143. Jones, who was by the truck, told Amanda, "[D]on't take that s**t, whip her a**." Tr. Vol. III p. 11.
[¶6] Amanda took a step toward Miranda. Saunders then pulled out a handgun, pointed it at Amanda, and said, "[B]ack up[,] b***h." Id. at 27. Jones then came around from the side of the truck and yelled at Saunders, "You pulled the mother f****n' gun, now you're gonna have to use it." Id. at 28. Jones, who was unarmed, ran toward Saunders and Amanda with the intent to "get the weapon out of [Saunders'] hands." Id. at 25. Jones was approximately ten to fifteen feet away from Saunders and had his hands "open" and "at his side" when Saunders fired at least five shots at Jones. Tr. Vol. II p. 150. Jones was hit in his abdomen and lower body.
Jones had nine bullet wounds on his body, but medical practitioners were unable to determine how many were entry wounds and how many were exit wounds.
[¶7] Miranda and Saunders then fled. First responders and law enforcement arrived on the scene. Law enforcement first located Miranda and the vehicle and, the next day, located Saunders. Johnson County Sheriff's Office Department Major Damian Katt detained Saunders and conducted a custodial interview in Major Katt's vehicle. Major Katt asked Saunders whether he acted in self-defense, but Saunders denied involvement in the shooting and claimed he did not own any firearms. The interview was suspended when Saunders began slamming his head against the window of the vehicle. Several minutes later, however, Saunders agreed to speak with Major Katt again. Saunders "blurted out it was self defense" and admitted to shooting Jones. Id. at 199.
[¶8] Saunders later participated in a second interview with law enforcement at the Johnson County Sheriff's Office. Saunders admitted that, after he shot Jones, he threw the gun out the window of the vehicle. Law enforcement recovered the holster of the gun but never recovered the gun itself.
[¶9] On August 12, 2022, the State charged Saunders in a four-count indictment; however, the State later moved to dismiss one of the charges. The State ultimately charged Saunders with: Count I, attempted murder, a Level 1 felony; Count III, pointing a firearm, a Level 6 felony; and Count IV, pointing a firearm, a Level 6 felony. Count III was for pointing a firearm at Jones, and Count IV was for pointing a firearm at Amanda. The State also sought a firearm enhancement.
The State originally charged Saunders with: Count I, attempted murder, a Level 1 felony; Count II, aggravated battery, a Level 3 felony; Count III, pointing a firearm, a Level 6 felony; and Count IV, pointing a firearm, a Level 6 felony. February 21, 2024, the State amended the information to dismiss Count II and pursue the firearm enhancement.
[¶10] The jury trial took place in February 2024. The State sought to admit Exhibit 13, which is a photograph that depicts Saunders with three guns: a rifle, a handgun in a holster, and a second handgun without a holster. Ex. Vol. IV p. 13. The rifle was the gun that Saunders sold in Nashville before the shooting, the handgun in the holster was the gun Saunders used in the shooting, and the second handgun was unrelated to the events. Saunders objected to the admission of the photograph on the grounds that "the prejudicial nature of the photograph outweighs its probative value ...." Tr. Vol. II p. 185. The trial court overruled the objection and admitted the photograph.
[¶11] Saunders did not testify. At some point during the trial, Saunders "smacked" a cup of coffee off the defense table. State's Sentencing Ex. 1 Jail Call No. 1 at 5:00. The trial court instructed the jury regarding Saunders' self-defense claim. The jury found Saunders guilty as charged. While the trial court was reading the jury's verdict, Saunders fled the courtroom but was apprehended in the stairwell. Saunders waived his right to a jury on the firearm enhancement, and the trial court determined that the enhancement applied. The trial court entered judgments of conviction on all counts and set the matter for a sentencing hearing.
[¶12] The sentencing hearing occurred on March 27, 2024. The State introduced as evidence two of Saunders' phone calls from jail. During these phone calls, Saunders joked about fleeing the courtroom and smacking the cup of coffee off the table during the trial. He also stated that he was "not sorry for what happened." State's Sentencing Ex. 1 Jail Call No. 2 at 9:30. Saunders gave an allocution statement in which he apologized for smacking the cup of coffee and "for the situation that happened." Tr. Vol. III p. 133.
[¶13] During the sentencing hearing, the trial court called as a witness Johnson County Sheriff's Office Deputy Randy Vandagrifft. The trial court asked Deputy Vandagrifft to describe Saunders behavior while in jail awaiting sentencing. Deputy Vandagrifft testified that Saunders "threatened to put food trays in the back of the . . . room so he'd have to fight officers as they come in to pick up the trays"; Saunders broke razors and was no longer permitted to use a razor; and Saunders had two write-ups-one for fleeing the courtroom and another for "assaulting an officer." Id. at 134-35. The State and Saunders were then permitted to ask Deputy Vandagrifft questions.
[¶14] The trial court found as aggravating factors: (1) Saunders' criminal and juvenile history; (2) imposition of a reduced sentence would "depreciate the seriousness of the crime"; and (3) Saunders fled the courtroom. Id. at 152. The trial court noted that it did not find as an aggravating factor any of Saunders' actions "after the verdict" aside from Saunders "leaving the courtroom." Id. at 153. The trial court found as mitigating factors Saunders' young age, difficult childhood, mental health issues, and the fact that Saunders cooperated with law enforcement.
[¶15] The trial court determined that the aggravators outweighed the mitigators and sentenced Saunders to thirty-six years in the Department of Correction for the attempted murder conviction, which the trial court enhanced by fourteen years for the firearm enhancement, for a total sentence of fifty years. The trial court sentenced Saunders to three years for Count IV, pointing a firearm at Amanda, to be served concurrently with Saunders' sentence for attempted murder. Lastly, the trial court "merged" the conviction for Count III, pointing a firearm at Jones, with the conviction for attempted murder. Id. at 153. Saunders now appeals.
Discussion and Decision
I. Any error in admitting the photograph of the three guns was harmless.
[¶16] Saunders first argues that, pursuant to Evidence Rule 403, the trial court abused its discretion by admitting State's Exhibit 13, the photograph of the three guns.We review challenges to the admission of evidence for an abuse of the trial court's discretion. Combs v. State, 168 N.E.3d 985, 990 (Ind. 2021). We will reverse only where the decision is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights. Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). "The effect of an error on a party's substantial rights turns on the probable impact of the impermissible evidence upon the jury in light of all the other evidence at trial." Gonzales v. State, 929 N.E.2d 699, 702 (Ind. 2010); see Ind. Trial Rule 61; Ind. Appellate Rule 66(A). "The improper admission of evidence is harmless error when the conviction is supported by such substantial independent evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction." Pelissier v. State, 122 N.E.3d 983, 988 (Ind.Ct.App. 2019), trans. denied.
On appeal, Saunders also argues that the photograph was inadmissible pursuant to Evidence Rule 404(b)- evidence of crimes, wrongs, and other acts; however, this argument is waived because Saunders did not object on that basis at trial. Rather, at trial, Saunders objected to the photograph only under Rule 403- excluding relevant evidence for prejudice, confusion, or other reasons. See Halliburton v. State, 1 N.E.3d 670, 683 (Ind. 2013) (holding that Rule 404(b) argument was waived when appellant only objected under Rule 403 at trial).
[¶17] Pursuant to Evidence Rule 403, "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." We have emphasized that, "[w]hile all relevant evidence is prejudicial in some sense, the question is not whether the evidence is prejudicial, but whether the evidence is unfairly prejudicial." Ward v. State, 138 N.E.3d 268, 273 (Ind.Ct.App. 2019) (citing Wages v. State, 863 N.E.2d 408, 412 (Ind.Ct.App. 2007), trans. Denied). Evidence that the defendant possessed weapons not used in the crime charged should generally not be introduced because such evidence is irrelevant and highly prejudicial. Hubbell v. State, 754 N.E.2d 884, 890 (Ind. 2001); Lycan v. State, 671 N.E.2d 447, 454 (Ind.Ct.App. 1996).
[¶18] It is clear that the photograph contained evidence that was irrelevant and prejudicial. The rifle was sold before the shooting occurred, and one of the handguns was not connected to the events at all. The State argues that, because the gun used in the shooting was not recovered, the photograph "provided the jury the only opportunity to view the firearm that [Saunders] used to shoot [Jones]." Appellee's Br. p. 20. But we see no reason why the State could not edit the photograph to remove the other two guns or use a stand-in firearm as a demonstrative exhibit. See Dunlap v. State, 761 N.E.2d 837, 842 (Ind. 2002) (affirming admission of similar weapon as a demonstrative exhibit when murder weapon was not found). Doing so would have removed any undue prejudice brought about by the photograph here.
[¶19] Any error in admitting the photograph, however, was harmless. The evidence was largely uncontested that Saunders pointed the handgun with the holster at Amanda and shot Jones at least five times. After the shooting, Saunders fled, disposed of the handgun, and initially denied any involvement in the shooting. Saunders later admitted to law enforcement that he sold the rifle in Nashville before the shooting and that he shot Jones with the handgun that had a holster. We are not persuaded that a "substantial likelihood" exists that the jury's verdict would have been different absent the admission of the photograph. Pelissier, 122 N.E.3d at 988; see Hubbell, 754 N.E.2d at 890 (holding admission of photograph of gun unconnected to the crime was harmless error). The admission of the photograph was harmless error.
II. Sufficient evidence supports Saunders' conviction.
[¶20] Saunders next argues that insufficient evidence supports his conviction. He argues that the State presented insufficient evidence that he acted with the specific intent to kill Jones. He further argues that the State failed to rebut his claim of self-defense. Both arguments are unavailing.
[¶21] Sufficiency of the evidence claims warrant a deferential standard of review in which we "neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury." Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024). A conviction is supported by sufficient evidence if "there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." Id. In conducting this review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it. Id. We affirm the conviction "'unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.'" Sutton v. State, 167 N.E.3d 800, 801 (Ind.Ct.App. 2021) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).
A. Specific Intent to Kill
[¶22] We first conclude that the State presented sufficient evidence to show that Saunders acted with the specific intent to kill Jones. The jury convicted Saunders of attempted murder. Pursuant to our attempt statute,
A person attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same level or class as the crime attempted. However, an attempt to commit murder is a Level 1 felony.
[¶23] A conviction for attempted murder requires the State to prove the defendant, "with intent to kill the victim, engaged in conduct which was a substantial step toward such killing." Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015) (italics in original). "This requirement that the State establish the defendant's specific intent to kill in order to prove him or her directly liable for attempted murder stems from the stringent penalties for attempted murder and the ambiguity often involved in its proof." Id. (internal quotations omitted).
[¶24] The defendant's specific intent to kill "may be inferred from the nature of the attack and the circumstances surrounding the crime." Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002). "Additionally, the trier of fact may infer intent to kill from the use of a deadly weapon in a manner likely to cause death or great bodily harm." Id.
[¶25] We conclude that the State presented sufficient evidence to show that Saunders acted with the specific intent to kill Jones. The evidence shows that Saunders, who was familiar with firearms, shot Jones at least five times from a distance of ten to fifteen feet, hitting Jones in the abdomen and lower body. See Perez v. State, 872 N.E.2d 208, 213-14 (Ind.Ct.App. 2007) (finding sufficient evidence to support specific intent to kill element in attempted murder conviction when defendant fired multiple shots at victims' car), trans. denied. Saunders then fled the scene, disposed of the weapon, and initially denied any involvement in the shooting. Saunders contends that the evidence is insufficient because he did not know Jones before the shooting and, after Jones was shot, Saunders did not "walk[] up to Jones and kill[] [Jones] after [Jones] was incapacitated." Appellant's Br. p. 11. But Saunders cites no caselaw in support of his argument that the State was required to establish that he had a prior relationship with Jones, and the fact that Saunders did not actually kill Jones is irrelevant. Sufficient evidence supports the specific intent element of the attempted murder conviction.
B. Self-defense
[¶26] We next find that the State presented sufficient evidence to rebut Saunders' claim of self-defense. "Self-defense is a legal justification for an otherwise criminal act." Stewart v. State, 167 N.E.3d 367, 376 (Ind.Ct.App. 2021) (citing Gammons v. State, 148 N.E.3d 301, 304 (Ind. 2020)), trans. denied. "The self-defense statute provides that an individual has the right to use 'reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force.'" Id. (quoting Ind. Code § 35-41-3-2(c)). Additionally, a person is justified in using deadly force and does not have a duty to retreat, if the person reasonably believes such force is necessary to prevent serious bodily injury to himself or to a third person. Id. (citing I.C. §§ 35-41-3-2(c)(1), -2(c)(2)). To prevail on a claim of self-defense involving the use of deadly force, the defendant must show that: (1) he was in a place where he had a right to be; (2) he did not provoke, instigate, or participate willingly in the violence; and (3) he had a reasonable fear of death or great bodily harm. Id. (citing Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002)).
[¶27] When the defendant raises a self-defense claim which finds support in the evidence, "the State carries the burden of negating at least one of the necessary elements." Id. (citing Hughes v. State, 153 N.E.3d 354, 361 (Ind.Ct.App. 2020), trans. denied). "The State may meet its burden by rebutting the defense directly-by affirmatively showing the defendant did not act in self-defense-or by simply relying on the sufficiency of its evidence in chief." Id. (citing Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999)). If a defendant is convicted despite his claim of self-defense, an appellate court will reverse only if no reasonable person could say that self-defense was "negated by the State beyond a reasonable doubt." Id. (citing Wilson, 770 N.E.2d at 800-01).
[¶28] We conclude that the State sufficiently rebutted Saunders' claim of self-defense. First, Saunders was the only armed participant, and he instigated the violence. Miranda was attempting to get Amanda to fight her, but before the two made any physical contact, Saunders pulled out the gun, pointed it at Amanda, and said, "[B]ack up[,] b***h." Tr. Vol. III p. 27. This threat to Amanda caused Jones, who was also unarmed, to intervene. Cf. Quinn v. State, 126 N.E.3d 924, 927 (Ind.Ct.App. 2019) (rejecting self-defense claim because defendant acted as the initial aggressor by going to victim's home brandishing a loaded firearm with the intent to harm the victim).
[¶29] Second, the jury could have reasonably found that Saunders did not have a reasonable fear of death or great bodily harm to himself or Miranda and that he used excessive force when he shot Jones. Although Jones ran toward Saunders and unwisely goaded Saunders to use the gun, Jones was unarmed, and Saunders shot him at least five times from a distance of ten to fifteen feet. Saunders was the only person involved in the altercation who was armed with a gun, and neither Jones nor Amanda made any physical contact with Saunders or Miranda. See Geralds v. State, 647 N.E.2d 369, 373 (Ind.Ct.App. 1995) (rejecting self-defense claim on grounds that defendant used excessive force by firing multiple shots at unarmed victim), trans. denied. Saunders' use of deadly force was not justified, and the State sufficiently rebutted his claim of self-defense.
The State also argues that it rebutted Saunders' self-defense claim because Saunders was not in a place where he had a right to be; Saunders was in Jones' driveway when he shot Jones. In Turner v. State, 183 N.E.3d 346, 354 (Ind.Ct.App. 2022), trans. denied, a panel of this Court noted that the requirement that a defendant be in a place where he had a right to be "has rarely been in dispute, and thus there are very few Indiana cases that have explored its application." The Court further noted that "literal application" of the requirement that one be in a place where one has a right to be in claiming self-defense "could bring about unjust or absurd results and defeat 'the policy of this state that people have a right to defend themselves and third parties from physical harm and crime.'" Id. at 356 (quoting Ind. Code § 35-41-3-2(a)). Here, because the State sufficiently rebutted Saunders' self-defense claim on other grounds, we need not decide whether Saunders' presence in Jones' driveway constitutes an additional basis to reject his self-defense claim.
III. The trial court did not commit fundamental error by calling a witness during Saunder's sentencing hearing.
[¶30] Saunders next argues that the trial court committed fundamental error by calling Deputy Vandagrifft as a witness during Saunders' sentencing hearing. To succeed on a claim of fundamental error, the defendant must show that, although he or she failed to object when the error arose, "under the circumstances, the error 'constitute[d] clearly blatant violations of basic and elementary principles of due process' and 'present[ed] an undeniable and substantial potential for harm.'" Gary v. State, 113 N.E.3d 237, 242 (Ind.Ct.App. 2018) (brackets in original) (holding no fundamental error occurred during defendant's sentencing hearing) (quoting Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014)), trans. denied.
[¶31] We conclude that Saunders has not demonstrated that the trial court committed fundamental error by calling Deputy Vandagrifft as a witness. Saunders cites no caselaw holding that a trial court judge cannot call a witness at a sentencing hearing to testify regarding the defendant's behavior in jail after trial and while awaiting sentencing. Although Evidence Rule 614(a) provides, "The court may not call a witness except in extraordinary circumstances or as provided for court-appointed experts," the Rules of Evidence do not apply to sentencing proceedings, Evid. R. 101(d)(2); Russell v. State, 234 N.E.3d 829, 858 (Ind. 2024), cert. denied.
[¶32] Rule 1.2 of the Judicial Code of Conduct, however, provides that "[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety." We caution trial court judges against calling witnesses based on the Judicial Code of Conduct's requirement of impartiality.
[¶33] That being said, we need not determine whether the trial court erred by calling the witness here because the witness only testified regarding Saunder's behavior while incarcerated after the trial. The trial court did not consider this testimony as a factor when determining Saunders' sentence.
IV. Remand is necessary to correct sentencing errors.
[¶34] Although the trial court did not commit fundamental error by calling the witness, several errors at sentencing require remand. First, the trial court ordered that Count III, Saunders' conviction for pointing a firearm at Jones, "merge" with his conviction for attempted murder. Tr. Vol. III p. 153. The trial court, however, had already entered judgment of conviction on Count III.
[¶35] This Court has explained:
If a trial court does not formally enter a judgment of conviction on a [finding] of guilty, then there is no requirement that the trial court vacate the "conviction," and merger is appropriate.
However, if the trial court does enter judgment of conviction on a [guilty finding], then simply merging the offenses is insufficient and vacation of the offense is required.Bass v. State, 75 N.E.3d 1100, 1102 (Ind.Ct.App. 2017) (quoting Kovats v. State, 982 N.E.2d 409, 414-15 (Ind.Ct.App. 2013) (italics and brackets in original; internal citations omitted).
"Use of the word 'merge' in the context of sentencing can be confusing." Stubbers v. State, 190 N.E.3d 424, 431 n.2 (Ind.Ct.App. 2022), trans. denied. "The better practice is for a trial court to simply not enter judgment of conviction on a count that would implicate double jeopardy." Id.
[¶36] Here, because the trial court entered judgment of conviction on Count III before ordering Count III to be merged, the trial court was required to vacate the judgment of conviction on that count. Although the trial court's sentencing order and abstract of judgment indicate that Count III merged with the attempted murder conviction, neither of the documents indicate that the conviction for Count III was vacated. Accordingly, we remand with instructions that the trial court vacate Saunder's judgment of conviction for Count III, pointing a firearm at Jones.
[¶37] The second error that requires remand is Saunder's three-year sentence for Count IV, pointing a firearm at Amanda, a Level 6 felony. Indiana Code Section 35-50-2-7(b) provides, "[a] person who commits a Level 6 felony . . . shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 %) years, with the advisory sentence being one (1) year." Saunder's three-year sentence exceeds the two-and-one-half-year maximum sentence for the offense. Accordingly, we remand with instructions that the trial court resentence Saunders to two-and-one-half years for Count IV. Because this sentence was ordered to be served concurrently with Saunders' fifty-year enhanced sentence for attempted murder, however, resentencing Saunders for Count IV will not practically affect the length of Saunders' sentence.
V. Saunders' sentence is not inappropriate.
[¶38] Lastly, Saunders argues that his fifty-year sentence is inappropriate. The Indiana Constitution authorizes independent appellate review and revision of sentences imposed by a trial court. Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (citing Ind. Const. art. 7, §§ 4, 6). This authority, as implemented through Appellate Rule 7(B), enables this Court to "revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Deference to the trial court's sentence should prevail unless "overcome by compelling evidence portraying in a positive light the nature of the offense and the defendant's character." Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023) (internal quotations omitted). A defendant, however, need not show that both the nature of the offense and his or her character warrant revision; rather, "a strong showing on one prong" may "outweigh a weak showing" on the other prong. Lane, 232 N.E.3d at 127.
[¶39] Additionally, in determining whether a sentence is inappropriate, we are not limited to the aggravating and mitigating circumstances found by the trial court. Oberhansley, 208 N.E.3d at 1271. "Our role is primarily to leaven the outliers and identify guiding principles for sentencers, rather than to achieve the perceived correct result in each case." Lane, 232 N.E.3d at 122 (internal quotations omitted). "Ultimately, we rely on our collective judgment as to the balance of all the relevant considerations involved, which include 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. (internal quotations omitted).
[¶40] When determining whether a sentence is inappropriate, the advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Fullerv. State, 9 N.E.3d 653, 657 (Ind. 2014). Under our sentencing statutes, "[a] person who commits a Level 1 felony . . . shall be imprisoned for a fixed term of between twenty (20) and forty (40) years, with the advisory sentence being thirty (30) years." Ind. Code § 35-50-2-4(b). Additionally, if the State proves beyond a reasonable doubt "that the person knowingly or intentionally used a firearm in the commission of [an enumerated offense], the court may sentence the person to an additional fixed term of imprisonment of between five (5) years and twenty (20) years." Ind. Code § 35-50-2-11(b).
[¶41] In the case at hand, Saunders was sentenced to thirty-six years for attempted murder, a Level 1 felony, enhanced by fourteen years by the firearm enhancement, for a total of fifty years. As discussed above, after remand, Saunder's sentence for pointing a firearm at Amanda will be two-and-one-half years, to be served concurrently with his sentence for attempted murder.
[¶42] Saunders' sole argument that his sentence is inappropriate consists of one sentence-that "the mitigators presented to the trial court justify a reduced sentence." Appellant's Br. p. 15. Saunders discusses neither the nature of the offense nor the character of the offender elements of the analysis. The argument is not cogent and is, therefore, waived. See Ind.App. R. 46(A)(8)(a) (requiring that appellate arguments be supported by "cogent reasoning"); McBride v. State, 992 N.E.2d 912, 920 (Ind.Ct.App. 2013) (holding inappropriate sentence argument was waived where appellant failed to present a cogent argument), trans. denied.
[¶43] Waiver notwithstanding, we conclude that Saunders' sentence is not inappropriate. Starting with the nature of the offense, we look at the extent, brutality, and heinousness of the offense. See Wilson v. State, 157 N.E.3d 1163, 1182 (Ind. 2020). Here, Saunders threatened an unarmed Amanda by pointing a gun at her. Jones, who was also unarmed, intervened to protect his wife, and Saunders shot him at least five times from a distance of ten to fifteen feet. Saunders needlessly escalated the violence, and Jones was lucky to survive his injuries. The nature of the offense does not warrant revision of Saunders' sentence.
[¶44] The character of the offender analysis likewise does not warrant revision. Our analysis of the character of the offender involves a broad consideration of a defendant's qualities, including the defendant's age, criminal history, background, past rehabilitative efforts, and remorse. See Harris v. State, 165 N.E.3d 91, 100 (Ind. 2021); McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020). The significance of a criminal history in assessing a defendant's character and an appropriate sentence vary based on the "gravity, nature and number of prior offenses as they relate to the current offense." McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016). "Even a minor criminal history is a poor reflection of a defendant's character." Prince v. State, 148 N.E.3d 1171, 1174 (Ind.Ct.App. 2020).
[¶45] Here, after Saunders shot Jones, he fled and disposed of the weapon. He initially denied any involvement in the shooting. When the jury's verdict was being read, Saunders fled from the courtroom. He also demonstrated aggressive behavior toward law enforcement officers while in jail pending sentencing. Saunders has an extensive criminal and juvenile history. He was charged with attempted murder, aggravated battery, and battery by means of a deadly weapon for actions that took place roughly one month before the events of this case. Saunders is a young man with time to change his life, but he has not demonstrated positive character traits that warrant revision of his sentence. Saunder's sentence is not inappropriate in light of the nature of his offenses and his character.
Conclusion
[¶46] Any error in the admission of the photograph of the guns was harmless error, sufficient evidence supports Saunders' conviction, and the trial court did not commit fundamental error by calling a witness during the sentencing hearing. Although several sentencing errors require remand, these errors do not practically affect the length of Saunders' sentence, and Saunder's sentence is not inappropriate. Accordingly, we affirm in part and remand with instructions that the trial court: (1) vacate Saunder's judgment of conviction for Count III, pointing a firearm at Jones; and (2) resentence Saunders to two-and-one-half years for Count IV, pointing a firearm at Amanda, to be served concurrently with his sentence for attempted murder.
[¶47] Affirmed in part and remanded.
May, J., and DeBoer, J., concur.