Opinion
24A-CR-32
06-28-2024
Denver James Johnson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT J. Michael Woods Maryrachel Durso Stracci Law Group Crown Point, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Michelle Hawk Kazmierczak 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Lake Superior Court The Honorable Samuel L. Cappas, Judge Trial Court Cause No. 45G04-2306-MR-25
ATTORNEYS FOR APPELLANT
J. Michael Woods Maryrachel Durso Stracci Law Group Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE
Case Summary
[¶1] Denver Johnson pleaded guilty to one count of reckless homicide, a Level 5 felony, and agreed to the application of a firearm enhancement to his sentence. He was sentenced to five years for reckless homicide and an additional fifteen years for the firearm enhancement. Johnson appeals and argues: (1) the trial court abused its discretion by improperly considering several aggravators and failing to properly weigh a mitigator in determining his sentence; and (2) his sentence is inappropriate. We agree with Johnson that the trial court abused its discretion by considering several of the challenged aggravators; however, the trial court did not abuse its discretion regarding the mitigator, and we do not believe the trial court would have ordered a different sentence had it not considered the erroneous aggravators. We also do not find that Johnson's sentence is inappropriate. Accordingly, we affirm.
Issues
[¶2] Johnson raises two issues, which we restate as:
I. Whether the trial court abused its discretion by improperly considering several aggravators and failing to properly weigh one mitigator.
II. Whether Johnson's sentence is inappropriate.
Facts
[¶3] On the evening of May 28, 2023, eighteen-year-old Johnson was at a campfire in Crown Point with a group of friends, including his close friend, sixteen-year-old J.P. The campfire was in J.P.'s backyard. Emma Miller, Cooper Hesser, and J.P.'s brother, H.P., were also there.
[¶4] Over the course of the evening, the group drank beers, smoked marijuana, and took turns firing a gun Johnson brought to the campfire. Johnson had recently been given the gun as a birthday gift. According to Johnson, he believed that he removed the ammunition from the gun at some point later in the evening after the group was done playing with the gun.
[¶5] The campfire was recorded on a home security camera, although the darkness and angle of the camera make it difficult to discern the events that evening with total clarity. The recording depicts J.P. approaching Johnson, taking something from him in a playful manner, and then running away. State's Sentencing Exhibit 1 Clip 2 ("Video") 0:15. Miller said, "[J.P.], run away with it. You won't." Id. at 0:20. Johnson then pulled out the gun, cocked it, and pointed it in J.P.'s direction. Miller told Johnson, "Calm," and Hesser told him, "Stop." Id. at 0:27. Hesser also pushed Johnson's arm down so that Johnson was no longer pointing the gun. J.P. walked back in front of Johnson, and Johnson raised his arm again. Johnson pointed the gun at J.P.'s chest and pulled the trigger. A bullet struck J.P. Johnson yelled, "Oh, my God. [J.P.]!" and "I'm going to f*****g jail." Id. at 0:47.
[¶6] Johnson went inside to get H.P., who had gone inside the house earlier that night. When Johnson returned outside, he contacted 911. Johnson identified himself and told the 911 dispatcher, "We were playing around with a gun, and [J.P.] got shot. It's a legal gun, though." State's Sentencing Exhibit 1, 911 Call at 0:45. Johnson then told the dispatcher that he was the one playing with the gun. Johnson urged the dispatcher to send emergency responders, and he directed H.P. to apply pressure to the wound. Johnson also told the dispatcher: "I'm probably going to go to jail," id. at 5:50; "This is my best f*****g day-one friend," id. at 6:03; and "I cannot believe this f*****g s**t just happened," id. at 6:15.
[¶7] While waiting for the emergency responders to arrive, Johnson walked around the campfire, picked up some objects from the ground, and placed them in his backpack. Video at 8:20. Johnson also called his mother and said, "I just shot [J.P.] on accident.... I might go to jail. I'm so sorry.... It wasn't on purpose, I promise." Id. at 9:15.
[¶8] First responders arrived and transported J.P. to the hospital. Law enforcement officers arrested Johnson, who immediately turned over the gun. Johnson told the officers that he did not know the gun was loaded when he fired it. J.P. died that night at the hospital.
[¶9] The State first charged Johnson on May 30, 2023, with four counts: Count I, reckless homicide, a Level 5 felony; Count II: involuntary manslaughter, a Level 5 felony; Count III: pointing a firearm, a Level 6 felony; and Count IV: criminal recklessness, a Class B misdemeanor. On June 2, 2023, however, after receiving a complete copy of the video from the service provider, the State moved to dismiss the original charges and refiled the case under a different cause number. This time, the State charged Johnson with murder, a felony, as Count I, but none of the other counts. The State also sought a firearm enhancement.
[¶10] On November 1, 2023, the State amended the information to add Count II: reckless homicide, a Level 5 felony. That same day, Johnson entered into a plea agreement. Johnson agreed to plead guilty to the reckless homicide count and the firearm enhancement and to serve a sentence between six and twenty-one years, with the portion of the sentence served for the firearm enhancement capped at fifteen years. In exchange, the State agreed to dismiss the murder charge.
[¶11] The trial court held a hearing on the guilty plea later that day. Based on the fact that Johnson cocked the gun, the trial court was skeptical regarding Johnson's claim that he did not know the gun was loaded. The trial court stated, "I'll go through with the plea for now, take the matter under advisement, and re-watch the video in between." Tr. Vol. II p. 123.
[¶12] The trial court held a sentencing hearing on December 13, 2023, entered judgment of conviction on Count II: reckless homicide, a Level 5 felony, and found that the firearm enhancement applied. Detective Downs testified that, although Johnson had no history of arrests or convictions, law enforcement's Spillman database revealed that Johnson had previous contacts with law enforcement. Approximately ten years ago, Johnson "was involved in an incident with an air soft [sic] pellet gun where he was chasing around animals." Id. at 132. Johnson had broken the orange tip off the air soft gun to make the gun "look a lot more real ...." Id. As a juvenile, Johnson had trespassed at a cemetery and schools, been out past curfew, and "[s]hortly before" the shooting, "there was an incident where [Johnson] was alleged to have fired off his weapon." Id. at 133. Detective Downs also testified that, in 2022, an officer entered into the Spillman database that Johnson had indicia of gang affiliations and that Johnson was "a self-admitted Gangster Disciple." Id. at 134. Johnson gave an allocution statement and took "total responsibility for [his] action." Id. at 191.
The Spillman database is a law enforcement database used for recording police reports, identifications, and "individuals that have had any type of police contact." Tr. Vol. II pp. 131-32.
[¶13] The trial court found several aggravators: (1) Johnson's previous contacts with law enforcement demonstrated "anti-social behavior as evidenced by the fact that [Johnson] followed an animal with an air soft [sic] gun and presumably [shot] the animal," which the trial court found "disturbing"; (2) Johnson was a "self-admitted gang member"; (3) the victim was under the age of eighteen; (4) Johnson's conduct after the shooting showed the "opposite" of remorse; (5) Johnson was drinking and smoking marijuana at the time of the offense; (6) Johnson shot J.P. on a "dare[]"; (7) Johnson claimed, in the Pre-Sentence Investigation Report, that the shooting was an "accident"; and (8) others at the campfire appreciated the consequences of playing with the gun, but Johnson did not. Appellant's App. Vol. II p. 14.
[¶14] The trial court identified as mitigators the fact that Johnson was eighteen years old, expressed "sincere" remorse, and that Johnson had no criminal history, but the trial court gave no significant weight to any of these identified mitigators. Id. at 13. The trial court also identified Johnson's guilty plea as a mitigator but gave it no mitigating weight because Johnson faced a murder charge, and the guilty plea was "a practical solution to [Johnson's] predicament in that it reduced his exposure to long-term incarceration." Id. The trial court sentenced Johnson to five years for the reckless homicide count and fifteen years for the firearm enhancement, to be served consecutively in the Department of Correction. Johnson now appeals.
The trial court rejected Johnson's age as a mitigator because, by the age of eighteen, a person knows the "difference between right and wrong" and that "one of the rules of firearm safety is that you do not point [a gun] at anything you do not intend to kill or destroy." Appellant's App. Vol. II p. 13. The trial court also declined to find that the offense was the result of circumstances unlikely to reoccur because Johnson was "engaging in prior anti-social behavior with the criminal justice system." Id. at 14. Johnson, however, is only appealing the trial court's determination to give "no weight" to his guilty plea as a mitigator. Appellant's App. Vol. II p. 13.
Discussion and Decision
I. Abuse of Discretion-Sentencing Mitigators and Aggravators
[¶15] Johnson first argues that the trial court abused its discretion in sentencing him by giving insufficient weight to his guilty plea as a mitigator and by considering several aggravators. Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (citing Smallwood v. State, 773 N.E.2d 259, 263 (Ind. 2002)), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007); Phipps v. State, 90 N.E.3d 1190, 1197 (Ind. 2018). "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) (citing Rice v. State, 6 N.E.3d 940, 943 (Ind. 2014)).
[¶16] An abuse of discretion occurs in a number of ways, including when the trial court:
(1) fails "to enter a sentencing statement at all"; (2) enter[s] a sentencing statement in which the aggravating and mitigating factors are not supported by the record; (3) enter[s] a sentencing statement that does not include reasons that are clearly supported by the record and advanced for consideration; or (4) enter[s] a sentencing statement in which the reasons provided in the statement are "improper as a matter of law."Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quoting Anglemyer, 868 N.E.2d at 490-91).
[¶17] 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) (quoting Wilkes v. State, 917 N.E.2d 675, 690 (Ind. 2009)). "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 (citing Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999)).
A. Guilty Plea as a Mitigator
[¶18] Johnson only argues that the trial court abused its discretion by declining to give mitigating weight to his guilty plea. Discussing guilty pleas as a mitigating factor, our Supreme Court has explained:
We have held that a defendant who pleads guilty deserves "some" mitigating weight be given to the plea in return. McElroy v. State, 865 N.E.2d 584, 591 (Ind. 2007) (citing Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005)). But an allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is not only supported by the record but also that the mitigating evidence is significant. See Anglemyer, 868 N.E.2d 490-91. And the significance of a guilty plea as a mitigating factor varies from case to case. Francis [v. State], 817 N.E.2d [235,] 238 n.3 [(Ind. 2004)]. For example, a guilty plea may not be significantly mitigating when it does not demonstrate the defendant's acceptance of responsibility, id., or when the defendant receives a substantial benefit in return for the plea. Sensback v. State, 720 N.E.2d 1160, 1165 (Ind. 1999).Anglemyer v. State, 875 N.E.2d at 220-21 (emphasis added).
[¶19] Here, the trial court identified Johnson's guilty plea as a mitigator but gave it "no weight" because Johnson faced a murder charge, and the guilty plea was a "practical solution" that reduced Johnson's exposure to prison time. Appellant's App. Vol. II p. 13. Johnson argues that the trial court should have given more weight to the guilty plea because: (1) Johnson was originally charged with reckless homicide before the State refiled the case with the murder charge; and (2) Johnson did not receive a substantial benefit from the plea agreement.
[¶20] We are not persuaded by these arguments. First, although "[w]e review for an abuse of discretion the court's finding of aggravators and mitigators to justify a sentence, . . . we cannot review the relative weight assigned to those factors." Kedrowitz v. State, 199 N.E.3d 386, 404 (Ind.Ct.App. 2022) (quoting Baumholser v. State, 62 N.E.3d 411, 416 (Ind.Ct.App. 2016), trans. denied), trans. denied.
[¶21] Moreover, we agree with the trial court that Johnson received a substantial benefit from the plea agreement because he faced a far longer sentence if convicted of murder than the sentence he received here for reckless homicide. Johnson could have been found guilty of murder based on the facts of this case. Johnson cocked his gun and aimed it at J.P. The others cautioned him to lower the gun, and Johnson did at first. But he raised the gun again and fired at J.P., which resulted in J.P.'s death. If convicted of murder, Johnson would have faced a sentence of forty-five to sixty-five years. Ind. Code § 35-50-2-3. The guilty plea here, however, capped Johnson's sentence at twenty-one years. Johnson, thus, received a substantial benefit for his guilty plea by avoiding a possible lengthier prison term. We cannot find that the court abused its discretion by declining to give Johnson's guilty plea significant mitigating weight.
B. Aggravators
[¶22] Johnson does not challenge the trial court's aggravators that the victim was below the age of eighteen, that Johnson was drinking and smoking marijuana at the time of the offense, and that Johnson disregarded warnings against pointing the gun. Johnson, however, challenges the other aggravators. We conclude that three of the challenged aggravators are not supported by the record; however, the remainder are.
1. Aggravators Based Upon Detective Downs' Testimony
[¶23] Johnson challenges the aggravators that the trial court determined based upon Detective Downs' testimony at the sentencing hearing. Specifically, Johnson argues that the trial court's findings that he followed and shot an animal with an airsoft gun, engaged in antisocial behavior, and was a self-identified gang member are not supported by the record.
[¶24] As an initial matter, Johnson argues that Detective Downs' testimony on these points at the sentencing hearing constitutes hearsay. We conclude, however, that, to the extent Johnson challenges the admissibility of Detective Downs' testimony as hearsay, that challenge is waived. At the sentencing hearing, Johnson never objected to Detective Downs' testimony as hearsay, nor did Johnson contest that he engaged in any of the misconduct identified by Detective Downs. See Letica v. State, 569 N.E.2d 952, 957-58 (Ind. 1991) (finding that defendant failed to preserve challenge to testimony at sentencing hearing when defendant did not object to the testimony at the hearing). On appeal, Johnson does not argue that the admission of Detective Downs' testimony constitutes fundamental error. See Sincere v. State, 228 N.E.3d 439, 447 (Ind.Ct.App. 2024) (providing that the failure to object results in waiver and requires a showing of fundamental error), trans denied.
[¶25] Waiver notwithstanding, hearsay means a statement that: "(1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted." Evid. R. 801(c). Whereas the Rules of Evidence provide that hearsay is generally inadmissible at trial, "the strict rules of evidence do not apply to sentencing hearings," and it is "well-settled" that hearsay evidence is generally admissible at a sentencing hearing. Coleman v. State, 162 N.E.3d 1184, 1188 (Ind.Ct.App. 2021) (citing Dillon v. State, 492 N.E.2d 661, 664 (Ind. 1986)), trans. denied; see also Evid. R. 101(d)(2).
[¶26] Hearsay evidence, however, is not always proper in a sentencing hearing. Cloum v. State, 779 N.E.2d 84, 92 (Ind.Ct.App. 2002) (citing Thomas v. State, 562 N.E.2d 43, 48 (Ind.Ct.App. 1990)). Instead, "'[w]e must strike a balance between generally allowing hearsay information regarding [a] defendant's life and [e]nsuring that a defendant is not sentenced on invalid information.'" Id. (quoting Thomas, 562 N.E.2d at 48). And because "'reliance upon improper or inaccurate information in making the sentencing determination undermines the fairness of the sentencing process,'" id. (quoting Thomas, 562 N.E.2d 48), "a defendant being sentenced must be given the opportunity to refute any information he claims is inaccurate," id. (citing Letica, 569 N.E.2d at 958).
[¶27] We conclude that, with one exception, the trial court's aggravators based on Detective Downs' testimony are supported by the record. Detective Downs testified that, based on entries in the Spillman database, Johnson had several contacts with law enforcement as a juvenile, including for trespassing, staying out past curfew, following animals with an airsoft gun, and, more recently, firing a gun. Johnson never attempted to refute this testimony at the sentencing hearing, and, on appeal, he has not shown that such testimony is unreliable. Detective Downs further testified that Johnson was a self-admitted gang member. On this score, Johnson points out that J.P.'s mother testified she "never [knew Johnson] to have any gang affiliation." Tr. Vol. II p. 143. But we do not reweigh the evidence supporting a sentencing aggravator so long as a sufficient amount of supporting evidence exists. Schuler, 112 N.E.3d at 188. The trial court's findings that Johnson had contacts with law enforcement and was a self-admitted gang member are supported by the record.
[¶28] As for the incident with the airsoft gun, however, we agree with Johnson that there was no evidence that Johnson actually fired the airsoft gun at an animal. We also note that the incident would have occurred when Johnson was only eight or nine years old. Accordingly, the trial court abused its discretion by finding this aggravating factor because it is not supported by the record.
2. Johnson shot J.P. in response to a dare
[¶29] Johnson challenges the trial court's finding that he shot J.P. in response to a dare by Miller. We agree with Johnson that this finding is not supported by the record. The video of the incident shows that, after J.P. took the item from Court Johnson, Miller addressed J.P. when she said, "[R]un away with it. You won't." Video at 0:21. During the hearing on bail, Detective Downs testified that Miller made this statement to J.P. Miller was daring J.P. to run away with whatever he took from Johnson, not daring Johnson to shoot. Accordingly, the trial court abused its discretion by finding this aggravating factor because it is not supported by the record.
3. Johnson's conduct after the shooting
[¶30] Johnson challenges the trial court's finding that his conduct after the shooting showed the "opposite" of remorse. Appellant's App. Vol. II p. 14. During the sentencing hearing, the State argued that Johnson's behavior after the shooting was "almost worse than the actual conduct of the crime" because, according to the State, Johnson was concerned about going to jail, Johnson was insensitive with H.P. while speaking with the 911 dispatcher, and Johnson picked up shell casings from the scene to hide evidence. Tr. Vol. II p. 179. Johnson, however, points out that he contacted 911, retrieved H.P. from the house, directed H.P. to apply pressure to the wound using Johnson's shirt while Johnson spoke with the 911 dispatcher, and cooperated with law enforcement by remaining on the scene and turning over the gun and backpack.
[¶31] We agree with Johnson that the trial court abused its discretion by finding Johnson's conduct after the shooting to be an aggravating factor. It is impossible to discern from the video what Johnson picked up from the ground, much less his motive for doing so. And Johnson did the right thing by calling 911, rendering aid, and cooperating with law enforcement. Johnson remained on the scene until law enforcement arrived, whereas other individuals left long beforehand, and Johnson took responsibility for the shooting several times. Although Johnson was concerned about going to jail, we do not view Johnson's actions as indicating the "opposite" of remorse. The trial court, thus, abused its discretion.
4. Johnson's description of the shooting as an accident
[¶32] Lastly, Johnson challenges the trial court's finding that Johnson's description of the offense as "accidental . . . neutralizes his acceptance of responsibility." Appellant's App. Vol. II p. 14. According to the pre-sentence investigation report, when asked how his family felt about the incident, Johnson stated, "They obviously don't like it but they know it was an accident." Id. at 116. Johnson argues that "[t]he trial court took a small piece of this quote and framed it as Johnson being callous about the shooting." Appellant's Br. p. 29.
[¶33] We are not persuaded that the trial court abused its discretion here. Whether or not Johnson believed the gun was loaded, he pointed it at his friend and pulled the trigger. The trial court believed that Johnson was minimizing the offense by describing it as an accident. This aggravator is supported by the record.
C. Summary
[¶34] The trial court did not err by declining to give significant mitigating weight to Johnson's guilty plea, and most of the trial court's aggravators are supported by the record. "[W]e will not remand for resentencing if we can say with confidence the trial court would have imposed the same sentence had it not considered the purportedly erroneous aggravators." Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023). "[A] single aggravating circumstance may be sufficient to support an enhanced sentence," Hayko v. State, 211 N.E.3d 483, 487 n.1 (Ind. 2023), and the trial court found several valid and serious aggravators here. Although the trial court abused its discretion regarding three of the aggravators, we cannot say that the trial court would have imposed a different sentence had it not considered those aggravators.
II. Inappropriate Sentence
[¶35] Johnson next argues that his 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.
[¶36] 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).
[¶37] 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). A person convicted of a Level 5 felony "shall be imprisoned for 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). Under the applicable version of the firearm enhancement statute, if the person uses a firearm in the commission of an offense, the person can be sentenced to "an additional fixed term of imprisonment of between five (5) years and twenty (20) years." Ind. Code § 35-50-2-11(g) (effective July 1, 2022, to June 30, 2023). Here, Johnson was convicted of one count of reckless homicide, a Level 5 felony, and was sentenced to five years. His sentence was enhanced by fifteen years based on the firearm enhancement, for an aggregate sentence of twenty years in the Department of Correction.
[¶38] We conclude that Johnson's sentence is not inappropriate. Beginning with our analysis of the "nature of the offense," we consider the extent and heinousness of the offense. See Brown v. State, 10 N.E.3d 1, 5 (Ind. 2014). Johnson's offense here is horrendous. Even if Johnson believed the gun was not loaded, he pointed it at his friend and pulled the trigger. Others at the campfire discouraged Johnson from pointing the firearm, but Johnson recklessly disregarded their advice. This cost J.P. his life.
[¶39] As for our analysis of the character of the offender, our analysis 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). Johnson argues that his character warrants revision because he had no criminal history, was a high school student who worked full-time, and expressed remorse. He points out that, at the sentencing hearing, friends, family, and J.P.'s mother described him as kind, gentle, helpful, and compassionate; that he cooperated with law enforcement; and that he showed remorse. On the night of the shooting, however, Johnson, allowed the others to play with a loaded gun without proper supervision while they drank and smoked marijuana. He committed the instant offense while under the influence of drugs and alcohol. Johnson had previous, minor contacts with law enforcement regarding irresponsible behavior with guns, but Johnson still behaved irresponsibly with a gun at the campfire. Johnson has shown elements of both good and bad character, but we are not persuaded that his character warrants revision of his sentence.
[¶40] Johnson relies on Cooper v. State, 940 N.E.2d 1210 (Ind.Ct.App. 2011), trans. denied, and Malone v. State, 191 N.E.3d 870 (Ind.Ct.App. 2022), in arguing that his sentence is inappropriate. In Cooper, the defendant suspected his wife of having an affair. Armed with a shotgun that he purchased for the occasion and "some of the most destructive" shells available for the weapon, Cooper drove to the man's house early in the morning and waited for the man to leave for work. Id. at 1212. "[A]n altercation ensued," and the man died after being shot in the hand and chest. Id. Cooper was convicted of reckless homicide, a Class C felony. He was sentenced to the eight-year maximum for the offense plus an additional five years for using a firearm. Id. at 1213. On appeal, although Cooper claimed that the shooting was an accident and that he only intended to scare the man, because Cooper purchased the shotgun and dangerous ammunition, fled the scene, and failed to take responsibility, we held that Cooper's sentence was not inappropriate. Id. at 1217.
Johnson also cites Barnett v. State, 24 N.E.3d 1013 (Ind.Ct.App. 2015), and Knight v. State, 20 N.E.3d 606 (Ind.Ct.App. Sep. 15, 2014) (mem.), neither of which we give much weight. Barnett was attending a party with his cousin, Chatman, and brought a gun, which Chatman borrowed. Barnett, 24 N.E.3d at 1014. Later in the evening, the two men fought, a struggle for the gun ensued, and, after Chatman pointed the gun at Barnett, Barnett obtained the gun and shot Chatman in the face, killing him. Id. at 1015. Barnett was sentenced to seven years for reckless homicide, a Class C felony, and five years for a firearm enhancement. Id. We give little wight to this case because Barnett only challenged the sufficiency of the evidence to support his conviction, and we did not focus on his sentence in our opinion. We also do not consider Knight because it is a memorandum decision from 2014. Pursuant to Appellate Rule 65(D)(2), only memorandum decisions "issued on or after January 1, 2023, may be cited for persuasive value to any court by any litigant."
[¶41] In the other case cited by Johnson, Malone, a woman "jumped" on Malone's car, and Malone hit her and pointed a gun at her. 191 N.E.3d 873. Malone then pointed the gun at bystanders to prevent them from intervening and fought with another man. After the fight, Malone shot towards the man but accidentally hit a different woman, killing her. Malone fled the scene. Malone was convicted of reckless homicide, a Level 5 felony, and was sentenced to the six-year maximum for the offense plus an additional fifteen years for using a firearm. Id. On appeal, we held that Malone's sentence was not inappropriate based on the nature of the offense and his lengthy juvenile and criminal history. Id. at 877-88.
[¶42] These cases do not change our conclusion that Johnson's sentence is not inappropriate. Again, whether or not Johnson believed the gun was loaded, he pointed the gun at his friend and pulled the trigger. The act was reckless. Although Johnson's conduct and character are clearly different from the defendants in Cooper and Malone, our task is not to determine the appropriate sentence for Johnson's offense. We only determine whether Johnson's sentence is inappropriate in light of the nature of the offense and his character. Denham v. State, 142 N.E.3d 514, 516 (Ind. Ct App. 2020) (citing Barker v. State, 994 N.E.2d 306, 315 (Ind.Ct.App. 2013), trans. denied), trans. denied). Based on this standard of review, Johnson's sentence is not inappropriate.
Conclusion
[¶43] The trial court did not abuse its discretion in sentencing Johnson, and Johnson's sentence is not inappropriate. Accordingly, we affirm.
[¶44] Affirmed.
Crone, J., and Bradford, J., concur.