Opinion
24A-CR-619
10-18-2024
Kevon Kareem McCaster, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C. Lafayette, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Tippecanoe Circuit Court Trial Court Cause No. 79C01-2205-MR-1, The Honorable Sean M. Persin, Judge.
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C. Lafayette, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana.
Vaidik and Crone, Judges concur.
Baker, Senior Judge.
MEMORANDUM DECISION
Statement of the Case
[¶1] Kevon Kareem McCaster appeals from his convictions after a bench trial for two counts of murder, one count of Level 3 felony aggravated battery, and one count of Level 5 felony criminal recklessness, challenging the sufficiency of the evidence to support his convictions. He also challenges the trial court's sentencing order, contending the court abused its discretion at sentencing and that his sentence is inappropriate in light of the nature of the offense and the character of the offender. Concluding that there is no error, we affirm the trial court's judgment.
Facts and Procedural History
[¶2] A block party at Phipps Court in the Romney Meadows apartment complex in Lafayette began late in the evening on April 23, 2022 and continued into the early morning hours of April 24th. The partygoers also utilized the areas inside and outside of Jasmine Dallas' apartment. Many participants were drinking alcoholic beverages and using controlled substances. And a group of people inside Dallas' house were "shooting dice[]" in the dining room. Tr. Vol. II, p. 159.
[¶3] McCaster arrived at the party with his friends at around 2:45 a.m. He drove a black BMW and wore black jeans, a dark t-shirt, shoes, and a ski mask, in addition to a grey zip-up hoodie. His sister, Nikeya McCaster, as well as the mother of his children, Aaliya Wade, were already at the party and had arrived together. After arriving at the party, McCaster gave his hoodie to Wade to wear because she was cold. McCaster also met up with his friend Anton Coats.
The explanation for the mask was that after people began wearing surgical masks due to Covid safety precautions, people continued to wear those kinds of masks as well as other kinds that obscured more of the face as a fashion "trend" well after the safety precautions were no longer required. Tr. Vol. IV, p. 104.
[¶4] At some point, Nikeya and Tyrone Maxwell began to argue when Nikeya tried to enter Dallas' house. Dallas intervened and Nikeya entered and went to the kitchen area. Maxwell, however followed Nikeya and resumed arguing with her. The argument escalated to the point that Nikeya felt threatened, called Maxwell a "bitch" and slapped him. Id. at 139. Keya Erves, who was also attending the party, helped to separate Nikeya and Maxwell.
[¶5] Maxwell left the apartment but later returned with Taneisha Thomas. Taneisha and Nikeya first verbally argued and then physically fought each other in the living room of Dallas' apartment. Wade was near Nikeya when the fight broke out but was pushed outside the apartment during the melee. She told McCaster that someone was "jumping" his sister. Tr. Vol. IV. p. 31.
[¶6] McCaster entered the apartment and fought alongside his sister. At this point, it was Nikeya and McCaster fighting against Taneisha and her sister, Elaine. Dallas, who had been upstairs with her children, came downstairs and observed the fight in her living room. She picked up a folding chair and began hitting the combatants with the chair and eventually throwing it in an effort to break up the fracas. Taneisha and Elaine's brother, Tommy Marshall, entered the apartment and said "boy you tweaking, it's my sister[]" when he saw McCaster fighting them. Tr. Vol. II, p. 204.
[¶7] Surveillance video from the Romney Meadows apartments recorded a person in a white t-shirt jogging to a black sedan after the fighting ceased. The man then took what appeared to be a handgun from the car and jogged or ran back to Dallas' apartment. By that time, McCaster was outside the apartment. Erves went to the front door of the apartment where she saw McCaster outside the door and heard him telling someone to "give it to me." Tr. Vol. II, p. 145. McCaster was wearing a black ski mask, but Erves recognized him because she knew him, she had spoken to him earlier in the evening, and she had pulled his mask up to expose his face when speaking with him earlier. Erves believed McCaster was speaking to Anton Brown but did not see the other person. Jermal Purdis also heard someone ask for a gun but could not identify who that was.
[¶8] Erves became scared upon hearing this and tried to close and lock the front door, but the lock jammed. When the door opened, she saw McCaster standing in the doorway, and he appeared to be "cocking the gun" in his hands. Id. She yelled to the others inside, "he got a gun" and pushed Dallas and a friend upstairs. Id. As they ascended the stairs, Dallas and Erves heard multiple shots being fired. Dallas heard what she thought was eight shots fired in the apartment, then silence, followed by more shots fired outside the apartment.
[¶9] Carla Brown, another partygoer, observed a man in black clothes enter the apartment after the fight involving Nikeya and Taneisha had broken up. The man was dressed in a black ski mask and began firing a handgun into the kitchen from the living room. After McCaster fired the handgun inside, people began firing multiple firearms outside. Chanetta Dillard, who was outside the apartment, observed a "dark skin[ned] person" leave the apartment, holding a gun, after the shooting started. Tr. Vol. III, p. 60.
[¶10] Kiara Collins, who was also outside the apartment, saw McCaster exit the apartment. She saw McCaster run to a car and return to the apartment with a handgun. She later told the police that she heard McCaster yell that he would "air this bitch out." Tr. Vol. II, p. 241. She then saw him kick the door down and begin shooting.
[¶11] Pierre Welton was inside Dallas' apartment after the fight between Taneisha and Nikeya ended. He was waiting in line to use the bathroom when McCaster opened fire. Welton's girlfriend grabbed his hand and they ran toward the back door. Welton was struck in the back by a bullet, which pierced his lungs before he fled the apartment. Once outside, Welton was dizzy from his wound. A man in a white t-shirt approached with a handgun and opened fire on him, grazing Welton's chin. Welton collapsed behind Dallas' apartment and was later taken to a hospital. Seven of Welton's ribs were broken when he was shot.
[¶12] McCaster was struck by at least one bullet after he left the apartment and was running toward his car. McCaster's friends drove him to the hospital.
[¶13] An officer who was near Phipps Court heard the gunshots and reported it to dispatch. When officers arrived at the scene, they found Tommy Marshall and Edward Roberson lying on the floor in the kitchen of Dallas' apartment. During the course of their investigation, officers determined that in addition to Marshall, Roberson, McCaster, and Welton, two other people, Tyrone Maxwell and Robert Nelson, were shot, either inside or outside at Dallas' apartment.
[¶14] Marshall and Roberson both died due to bullet wounds fired from an indeterminate range. Marshall had been shot in the right foot and in the head. The fatal shot to Marshall's head entered the back of his head, passed through his brain, and exited near his left eye. Roberson was struck by four bullets. He was struck in the right foot, his left arm, and twice in the head. The bullet wounds to his head were fatal, with one entering his right brow and exiting the left side of his head, and the other striking the back, right side of his head and exiting the left, front side of his head.
[¶15] Inside Dallas' apartment, one unfired bullet was recovered in the living room. Eight spent 9mm casings were also recovered from the living room. One projectile was recovered from a closet in the hallway off the living room. And approximately 40 to 50 spent casings of a variety of types of ammunition were found outside Dallas' apartment. The eight casings found inside Dallas' apartment were examined and determined to have been fired by the same firearm.
[¶16] Law enforcement officers searched the car McCaster used to drive to Phipps Court and which was also used to transport him to the hospital. A black Nike brand mask was found between the front driver's seat and the center console. A DNA profile collected from the mask was found to contain a mixture of DNA from three people. It was one trillion times more likely that the DNA profile contained McCaster's DNA and two unknown, unrelated individuals than three unknown, unrelated individuals.
[¶17] Erves identified McCaster in a photo array as the person she saw enter the apartment with a handgun before the shooting began. Collins identified McCaster as the person she saw running from the apartment to a car and then carrying a handgun back to the apartment. And Dillard identified McCaster in a photo array as an individual she saw that night wearing a black ski mask.
[¶18] The State charged McCaster with two counts of murder, and one count each of Level 3 felony aggravated battery, Level 5 felony battery by means of a deadly weapon, Level 5 felony battery resulting in serious bodily injury, Level 5 felony criminal recklessness, Class A misdemeanor carrying a handgun without a license, Level 5 felony carrying a handgun without a license with a prior felony conviction, Level 5 felony carrying a handgun without a license with a prior conviction, and a firearm enhancement. At the conclusion of a bench trial, the court found McCaster guilty as charged.
[¶19] The trial court sentenced McCaster to consecutive, sixty-year sentences for each murder conviction, and twelve years enhanced by eight years for his Level 3 felony aggravated battery conviction. The court sentenced McCaster to four years for his conviction of carrying a handgun without a license with a prior felony conviction, to be served concurrently with the first count of murder. The resulting sentence for all his convictions was an aggregate sentence of one-hundred forty years executed in the Department of Correction (DOC). The trial court did not enter a judgment of conviction for the counts alleging: (1) Level 5 felony battery by means of a deadly weapon; (2) Level 5 felony battery resulting in serious bodily injury; (3) Class A misdemeanor carrying a handgun without a license; and (4) Level 5 felony carrying a handgun without a license with a prior conviction. The court vacated McCaster's conviction for Level 5 felony criminal recklessness due to double jeopardy concerns.
Discussion and Decision
I. Sufficiency of the Evidence
[¶20] McCaster argues that the evidence is insufficient to support his convictions for murder and Level 3 felony aggravated battery. "When reviewing a challenge to the sufficiency of evidence supporting a conviction, we neither reweigh the evidence nor assess the credibility of witnesses." Fix v. State, 186 N.E.3d 1134, 1138 (Ind. 2022). Rather, we consider "only the probative evidence and the reasonable inferences" supporting the conviction. Id. We reverse only if "no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Id. (quoting Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016)).
[¶21] More specifically, McCaster argues that there is insufficient evidence identifying him as the shooter to sustain each of these convictions. As to the Level 3 felony aggravated battery conviction, he adds the argument that the evidence is insufficient to demonstrate that the injury Welton suffered created a substantial risk of death or caused protracted loss of impairment of a function of a bodily member or organ. We address each of the arguments in turn.
A. Identity
[¶22] To prove that McCaster was guilty of both counts of murder, the State was required to prove beyond a reasonable doubt that McCaster knowingly or intentionally killed Tommy Marshall and that he knowingly or intentionally killed Edward Roberson. See Ind. Code § 35-42-1-1(1) (2018); Appellant's App. Vol. II, pp. 25-26. To prove that McCaster was guilty of Level 3 felony aggravated battery, the State was required to prove beyond a reasonable doubt that McCaster knowingly or intentionally inflicted injury on Pierre Welton creating a substantial risk of death or caused the protracted loss or impairment of the function of a bodily member or organ. See Ind. Code § 35-42-2-1.5 (2014); Appellant's App. Vol. II, p. 27. For each of the challenged convictions, McCaster contends that the evidence is insufficient to establish his identity as the shooter.
[¶23] In every case, the State must prove beyond a reasonable doubt that the accused was the person who committed the charged offense. Cf., e.g., Taylor v. State, 86 N.E.3d 157, 163 (Ind. 2017). "Identity may be established entirely by circumstantial evidence and the logical inferences drawn therefrom." Cherry v. State, 57 N.E.3d 867, 877 (Ind.Ct.App. 2016), trans. denied. For there to be sufficient evidence regarding identity, the "[i]dentification testimony need not necessarily be unequivocal[.]" Id. Moreover, to the extent the case involves circumstantial evidence identifying the defendant, the evidence is sufficient if a "reasonable [fact-finder] could have inferred that the defendant committed the crime[ ] charged." Young v. State, 198 N.E.3d 1172, 1182 (Ind. 2022).
[¶24] "A single eyewitness' testimony is sufficient to sustain a conviction." Rutherford v. State, 866 N.E.2d 867, 871 (Ind.Ct.App. 2007). Erves testified that she had seen McCaster that night at the party. She saw him standing at the door of the house. She heard him ask someone to "give it to me." Tr. Vol. II, p. 145. After she closed the door, the door opened and McCaster entered the apartment while cocking or chambering a round in a handgun he was holding. As she fled upstairs, Erves heard gunshots ring out inside the apartment. She also identified McCaster from a photo array as the person who entered the apartment and began shooting. Collins also testified that she saw McCaster kick the apartment door in and start shooting. Additionally, Brown testified that she saw a man wearing a black, colorful shirt, jeans and a mask enter the apartment with a gun and start firing toward the kitchen where Marshall and Roberson were found dead. McCaster testified, confirming that when he went to the block party at Phipps Court, he was wearing all black, "a black mask, black shirt, black pants, black shoes." Tr. Vol. IV, p. 121. Erves' and Collins' testimony is sufficient evidence to support McCaster's murder convictions. As for McCaster's aggravated battery conviction, Welton testified that he was in the hallway inside the apartment when he was shot in the back. In addition to the eyewitness testimony placing McCaster inside Dallas' apartment with a gun and shooting it, testimony established that eight spent gun casings were found inside the house apartment. This evidence leads to the inference that there was one shooter inside the lower level of the apartment and that person was McCaster.
[¶25] On appeal, McCaster generally points to the evidence least favorable to the verdict. And he directs us to inconsistencies in the testimony of various party attendees as the basis for his request for reversal. However, here, we have eyewitness testimony that McCaster had a gun in the apartment and started firing it toward the kitchen. And the shell casings were fired from the same gun, leading to the conclusion that, although there were other people shooting their weapons outside, McCaster fired the shots toward Marshall, Roberson, and Welton inside the apartment. McCaster's challenges to the identification evidence amount to a request for us to reweigh the evidence, a task we will not do. Fix, 186 N.E.3d at 1138.
[¶26] Furthermore, the trial court was free to consider the potentially conflicting testimony from the witnesses and determine which or what parts of their testimony to credit. See Baber v. State, 870 N.E.2d 486, 491 (Ind.Ct.App. 2007) ("The jury would be well within its prerogative in fully and sufficiently crediting only part of K.J.'s testimony with respect to incidents prior to January 18."). There was sufficient evidence that McCaster was wearing dark clothing and a ski mask, and fired into the kitchen killing Marshall and Roberson.
[¶27] With respect to McCaster's conviction for aggravated battery, Welton testified that he was shot inside the apartment and that when he was outside the apartment a shot fired from a man in a white t-shirt grazed him. And again, the eight casings inside the house indicate that the shots fired in the apartment came from the same weapon. McCaster was identified as having a gun in the apartment and firing it toward the kitchen. There was sufficient evidence that McCaster was wearing dark clothing and a ski mask, and fired the handgun, injuring Welton.
[¶28] The identity evidence is sufficient to support McCaster's convictions.
B. Substantial Risk of Death or Protracted Impairment
[¶29] McCaster's additional argument with respect to his aggravated battery conviction is that there is insufficient evidence to show that Welton's injury created a substantial risk of death. His argument in favor of reversal is that the "State failed to present any medical evidence (or medical records) regarding Welton's medication situation after the shooting." Appellant's Br. p. 40.
[¶30] McCaster relies primarily on this Court's opinion in W.H. v. State, 231 N.E.3d 900, 904 (Ind.Ct.App. 2024). In that case, we stated that "[i]n reviewing a sufficiency claim concerning whether the injuries created a substantial risk of death, we look to the observable facts, including the nature and location of the injury, and the treatment provided." Id. (quoting Alexander v. State, 13 N.E.3d 917, 921 (Ind.Ct.App. 2014)). In W.H., we concluded that the State had failed to present sufficient evidence by way of testimony or medical records explaining the specific nature of the injury to the victim or the treatment thereof. Id. Instead, the State's evidence consisted of general or hypothetical questions posed to a detective about his prior experience with gunshot wounds, not evidence specific to the victim's injury.
[¶31] Here, however, the State presented evidence that while Welton was inside the apartment, he was struck by a bullet in the back, and the bullet hit his lung. Welton collapsed while bleeding, passed out, was treated by paramedics, and had to be rushed to the hospital where a breathing tube was inserted. Welton also suffered seven broken ribs, which would have been caused by the shot to the back instead of the shot grazing his chin.
[¶32] The evidence in this case is similar to that in Oeth v. State, 775 N.E.2d 696 (Ind.Ct.App. 2002), trans. denied. In Oeth, we held that the evidence of observable facts, namely that the victim was struck on the back of her head and behind her ear with a hatchet, lost consciousness for a period of time, had profuse bleeding from her wounds which the emergency room doctor had difficulty stopping, the wound required nine stitches, and the wound behind her ear required several more stitches, was sufficient for the fact-finder to reasonably infer that the injuries created a substantial risk of death. Thus, we conclude that the court was reasonable in its inference that Welton's injuries created a substantial risk of death. And we will not reweigh the evidence. Fix, 186 N.E.3d at 1138.
II. Sentencing Issues
A. Abuse of Discretion
[¶33] At sentencing, the trial court found three aggravating circumstances, namely that McCaster had a prior criminal history, he had recently violated the terms and conditions of community corrections, and that he had recently violated the terms and conditions of his probation. McCaster argues that the court abused its discretion by finding three separate aggravating circumstances because "[a]ll of the court's aggravating factors focus, in one shape or form, on McCaster's prior criminal history." Appellant's Br. p. 44.
[¶34] An abuse of discretion occurs 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." Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. A court abuses its discretion if it: (1) fails "to enter a sentencing statement at all;" (2) enters "a sentencing statement that explains reasons for imposing a sentence-including a finding of aggravating and mitigating factors if any-but the record does not support the reasons;" (3) enters a sentencing statement that "omits reasons that are clearly supported by the record and advanced for consideration;" or (4) considers reasons that "are improper as a matter of law." Id. at 490-491. The relative weight or value assignable to reasons properly found, or those which should have been found, is not subject to review for abuse of discretion. Id. Generally, a single aggravator is sufficient to support an enhanced sentence. Trusley v. State, 829 N.E.2d 923, 927 (Ind. 2005).
[¶35] A history of criminal or delinquent behavior is a valid statutory aggravating factor. See Ind. Code § 35-38-1-7.1(a)(2) (2019). McCaster has four prior convictions and four juvenile delinquency adjudications. Therefore, the trial court did not abuse its discretion by finding this aggravating factor. And that factor alone is sufficient to support an enhanced sentence. Trusley, 829 N.E.2d at 927.
[¶36] McCaster has cited no cases which hold that the trial court could not find three separate statutorily authorized and valid aggravating circumstances. The court also found that McCaster had recently violated the terms and conditions of his community corrections placement. The record shows that McCaster's offense occurred in 2022 and his most recent community corrections violation was filed in 2020 and found true on July 21, 2020. The violation of the conditions of community corrections is a valid statutory aggravating factor. See Ind. Code § 35-38-1-7.1(a)(6) (2019).
[¶37] The violation of the conditions of probation is also listed in that subsection. See id. There is no support for the proposition that a court may not find separate aggravating factors for the violations of the various forms of conditional grace enumerated in that subsection. Thus, we conclude the court did not abuse its discretion by finding his violation of probation as a separate aggravating factor. And the record reflects that McCaster's most recent violation of probation was alleged in 2021 and found true on December 7, 2021.
[¶38] Consequently, we conclude the trial court did not abuse its discretion by finding three separate aggravating factors here.
B. Inappropriate Sentence
[¶39] McCaster also challenges his one-hundred-forty-year sentence executed in the DOC, contending that it is inappropriate in light of the nature of the offense and the character of the offender. He says the "trial court overstated the minimal criminal history of McCaster as it applies to murder convictions." Appellant's Br. p. 23.
[¶40] Indiana Appellate Rule 7(B) authorizes us to revise a sentence if we determine it to be inappropriate in light of the nature of the offense and the character of the offender. Although Rule 7(B) requires us to consider both of these factors, the appellant is not required to prove that each of them independently renders his sentence inappropriate. Turkette v. State, 151 N.E.3d 782, 786 (Ind.Ct.App. 2020), trans. denied. Rather, they are separate inquiries that we ultimately balance to determine whether a sentence is inappropriate. Id.; see also Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (confirming that while reviewing courts must consider both factors, defendant need not necessarily prove sentence is inappropriate on both counts). Our determination "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." Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B) is reserved for rare and exceptional cases. Wilmsen v. State, 181 N.E.3d 469, 472 (Ind.Ct.App. 2022) (quoting Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018)).
[¶41] Our Supreme Court has long said that sentencing is "'principally a discretionary function in which the trial court's judgment should receive considerable deference.'" Lane, 232 N.E.3d at 122 (quoting Cardwell, 895 N.E.2d at 1222). This deference prevails 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).'" Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind.Ct.App. 2023) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)), trans. denied. The defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Reynolds v. State, 142 N.E.3d 928, 944 (Ind.Ct.App. 2020), trans. denied.
[¶42] Our analysis of the nature of the offense starts with the advisory sentence, as it is the starting point selected by the legislature as an appropriate sentence for the crime. Reis v. State, 88 N.E.3d 1099, 1104 (Ind.Ct.App. 2017). Here, McCaster was convicted of murder, for which the sentencing range is a fixed term of between forty-five and sixty-five years with an advisory sentence of fifty-five years. Ind. Code § 35-50-2-3 (2015). McCaster received consecutive sentences of sixty years for each count of murder. The sentencing range for Level 3 felony aggravated battery is a fixed term of between three and sixteen years, with an advisory sentence of nine years. Ind. Code § 35-50-2-5(b) (2014). McCaster received a sentence of twelve years, enhanced by eight years for a firearm enhancement.
[¶43] "Our consideration of the nature of the offense recognizes the range of conduct that can support a given charge and the fact that the particulars of a given case may render one defendant more culpable than another charged with the same offense." Kunberger v. State, 46 N.E.3d 966, 973 (Ind.Ct.App. 2015). To further assess the nature of the offense, we look to the details and circumstances surrounding the offense, including the heinousness and brutality of such, and the defendant's participation therein. Pritcher v. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023).
[¶44] Here, McCaster's offenses were unprovoked and senseless. After the original fight between his sister and Taneisha concluded, McCaster obtained a handgun, entered and opened fire in the crowded apartment. Roberson and Welton were not involved in the earlier fight. And Marshall, Taneisha's brother, told McCaster to stop fighting his sister. McCaster fired at least eight times, striking Marshall twice, Roberson four times, and Welton at least once. Roberson was shot in the back of the head and Welton was shot as he fled the apartment. And there were children present in the house as well as elsewhere in the complex. Therefore, not only were the children in the apartment put at risk, but other children in the complex as the gun shots outside the apartment ensued after McCaster's actions. Consequently, McCaster has failed to persuade us that his sentence is in need of downward revision on this ground.
[¶45] Our analysis of a defendant's character involves a broad consideration of a defendant's qualities, including age, criminal history, background, past rehabilitative efforts, and remorse. Id. McCaster's criminal record, violations of community corrections and probation, and gang affiliations are unfavorable reflections upon his character.
[¶46] McCaster was twenty-three years old at the time he was sentenced. By that time, he had already been adjudicated a delinquent on four different cases, including three that would be convictions for battery resulting in bodily injury if he had been prosecuted as an adult. His convictions as an adult include convictions for two counts of dealing in marijuana and two counts of carrying a handgun without a license. This behavior is indicative of his failure to conform his behavior despite those conducts with law enforcement. And his juvenile battery adjudications have now escalated to murdering two people and seriously injuring a third. This criminal conduct does not portray his character in a positive light.
[¶47] Nor do his violations of probation and community corrections portray his character in a positive light. These violations indicate that attempts at rehabilitation have failed. See McFarland v. State, 153 N.E.3d 369, 374 (Ind.Ct.App. 2020) (probation violations show defendant has not changed his behavior). McCaster has violated his probation eight times, and his community corrections placements have been revoked twice.
[¶48] Additionally, McCaster has reported involvement in gang activity. A defendant's gang affiliation reflects poorly on his character. Zavala v. State, 138 N.E3d 291, 302 (Ind.Ct.App. 2019), trans. denied. Although the trial court made no finding about McCaster's gang affiliation, which he denied, the presentence investigation report reflects that he has tattoos affiliated with known gangs, he is considered a known gang associate, and was previously ordered to have no gang affiliation in 2013, and no contact with the "Stain Gang" in 2015.
[¶49] McCaster argues that his employment as a floor manager and laborer reflects well on his character. However, he has worked at three different places, but never for more than seven months at a time. "Many people are gainfully employed such that this would not require the trial court to note it as a mitigating factor ...." Newsome v. State, 797 N.E.2d 293, 301 (Ind.Ct.App. 2003), trans. denied.
[¶50] And he argues that a long period of incarceration would result in a hardship to his children. However, McCaster is not required to pay child support for his three children between the ages of three and two, though he has contact with them. The trial court found that his incarceration would be a hardship on his dependents as a mitigating circumstance. But there is no evidence to show that the hardship on his children will be any greater than the hardship caused by any other defendant's incarceration.
[¶51] McCaster has not met his burden of establishing that his character warrants a downward revision of his sentence.
[¶52] In sum, McCaster's sentence is not inappropriate in light of the nature of his offense or his character.
Conclusion
[¶53] In light of the foregoing, we affirm the trial court's judgment.
[¶54] Affirmed.
Vaidik, J., and Crone, J., concur.