MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Mar 25 2020, 9:35 am
regarded as precedent or cited before any
court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                    Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
Anthony S. Churchward, P.C.
                                                         Lauren A. Jacobsen
Fort Wayne, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joshua R. Mackin,                                        March 25, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1651
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable David M. Zent,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D06-1803-MR-4



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1651 | March 25, 2020            Page 1 of 9
[1]   Joshua Mackin appeals his convictions and the sentence imposed by the trial

      court for Murder1 and Level 4 Felony Unlawful Possession of a Firearm by a

      Serious Violent Felon,2 arguing that (1) his firearm conviction and the firearm

      enhancement attached to his murder conviction violate Indiana’s prohibition

      against double jeopardy; and (2) the sentence is inappropriate in light of the

      nature of the offenses and his character. Finding no double jeopardy violation

      and the sentence not inappropriate, we affirm.


                                                    Facts
[2]   Throughout the early part of 2018, Mackin and his stepbrother, Sam Westlake,

      had both been romantically involved with the same woman, Kerri Pendergrass.

      Mackin became infuriated with Westlake over this, repeatedly getting into

      verbal altercations with him and even threatening in the comments section on

      Mackin’s Facebook page to kill Westlake. Westlake became worried that

      Mackin might actually harm him.


[3]   On February 19, 2018, Westlake, along with his friend Ryan Masoner, drove in

      Westlake’s Jeep to Mackin’s home to pick up a white truck. Once there,

      Mackin, Masoner, and Westlake all worked on the truck until it was up and

      running. The three planned to drive that truck, along with Westlake’s Jeep, to a

      local motel. Before leaving, Mackin shot Westlake in the Jeep five times before




      1
          Ind. Code § 35-42-1-1.
      2
          Ind. Code § 35-47-4-5(c).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1651 | March 25, 2020   Page 2 of 9
      Mackin and Masoner took off with the truck. Westlake died as a result of the

      shooting. Eventually, Mackin dropped off the truck and Masoner disposed of

      the firearm in a nearby river. According to Masoner, Mackin had told him that

      “if you talk to any of the police or anything you need to tell them that when we

      left [Westlake] . . . he was alive.” Tr. Vol. I p. 107-08. Masoner also testified

      that “[Mackin] threatened myself and my family if I would say anything.” Id. at

      108. Soon thereafter, Mackin drove to the Allen County Community

      Corrections office to meet up with Pendergrass. On Mackin’s person was a

      separate firearm that was not used in Westlake’s murder. Mackin and

      Pendergrass then drove to Pendergrass’s house, and once there, Mackin shaved

      and bleached his head and stored the second firearm in the ceiling. Eventually,

      Mackin was arrested for Westlake’s murder.


[4]   On March 8, 2018, the State charged Mackin with murder, Level 4 felony

      unlawful possession of a firearm by a serious violent felon, and a use of a

      firearm enhancement in connection with the murder charge. The State also

      alleged that Mackin was an habitual offender. At the conclusion of Mackin’s

      April 29, 2019, trial, the jury found Mackin guilty as charged. In a later

      proceeding, the jury also found that Mackin was an habitual offender.


[5]   At Mackin’s May 20, 2019, sentencing hearing, the trial court found the

      circumstances of Mackin’s offenses, his substantial criminal history, and his

      multiple revocations of parole and violations of probation to be aggravators.

      The trial court found no mitigators. In sum, the trial court sentenced Mackin to

      consecutive sentences of 65 years executed for the murder conviction, 12 years

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1651 | March 25, 2020   Page 3 of 9
      executed for the Level 4 felony unlawful possession conviction, 20 years

      executed for the firearm enhancement, and an additional 20 years executed for

      the habitual offender finding, for an aggregate term of 117 years. Mackin now

      appeals.


                                   Discussion and Decision
                                        I. Double Jeopardy
[6]   First, Mackin argues that his conviction for unlawful possession of a firearm by

      a serious violent felon and the firearm enhancement attached to his murder

      conviction violate Indiana’s prohibition against double jeopardy. The principle

      of double jeopardy prohibits the State from punishing a defendant twice for the

      same offense. Mehidal v. State, 623 N.E.2d 428, 434 (Ind. Ct. App. 1993); see

      generally Ind. Const. art. 1, § 14. We review questions of double jeopardy de

      novo, giving no consideration to the trial court’s decision below. Goldsberry v.

      State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005).


[7]   More specifically, Mackin argues that there is a reasonable possibility that the

      jury relied on the same facts to convict him of both unlawful possession of a

      firearm by a serious violent felon and the firearm enhancement attached to his

      murder conviction. Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). Under this

      “actual evidence” test, Mackin must show that there is “a reasonable possibility

      that the evidentiary facts used by the fact-finder to establish the essential

      elements of one offense may also have been used to establish the essential

      elements of a second challenged offense.” Richardson v. State, 717 N.E.2d 32, 53

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1651 | March 25, 2020   Page 4 of 9
      (Ind. 1999). There is no double jeopardy violation when the evidentiary facts

      establishing the essential elements of one offense satisfy many, but not all, of

      the essential elements of the second offense. Garrett v. State, 992 N.E.2d 710,

      719 (Ind. 2013).


[8]   To add a firearm enhancement in connection with Mackin’s murder conviction,

      the State had to prove beyond a reasonable doubt that Mackin knowingly or

      intentionally used a firearm in the commission of the murder. Ind. Code § 35-

      50-2-11(d). To convict Mackin of Level 4 felony unlawful possession of a

      firearm by a serious violent felon, the State was required to prove beyond a

      reasonable doubt that Mackin, a serious violent felon, knowingly or

      intentionally possessed a firearm. I.C. § 35-47-4-5(c).


[9]   First, with regards to the firearm enhancement, the State proffered evidence that

      Mackin, with clear intent, used a firearm to shoot Westlake five times in

      succession, thereby killing him. The State also showed that Masoner later

      disposed of that firearm in a nearby river. Next, with regards to the unlawful

      possession of a firearm by a serious violent felon conviction, the State proffered

      evidence that Mackin has a substantial criminal history classifying him as a

      serious violent felon and that at some point, Mackin possessed a firearm that he

      used to kill Westlake. Additionally, the State demonstrated that Macklin

      possessed another firearm that he had on his person when he went to visit

      Pendergrass. The record shows that Mackin eventually hid that firearm in the

      ceiling once he arrived at Pendergrass’s house.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1651 | March 25, 2020   Page 5 of 9
[10]   In looking at this evidence, there is not a reasonable possibility that the jury

       relied on the same evidence to establish the essential elements of both the

       unlawful possession conviction and the firearm enhancement. The presence of

       an entirely separate firearm demonstrates that the jury likely relied on different

       evidence from different points of the evening in question in order to arrive at its

       judgment.


[11]   Most importantly, the actions of “use” and “possess” are separate and distinct.

       For the unlawful possession count, the jury had to find beyond a reasonable

       doubt that Mackin simply possessed a firearm, which he did at multiple times

       throughout the course of the evening leading up to and following the murder.

       Further, there were two different firearms that Mackin definitely possessed. For

       the firearm enhancement count, on the other hand, the jury had to find beyond

       a reasonable doubt that Mackin actually used, operated, “fire[d],” or

       “brandish[ed],” Daniels v. State, 957 N.E.2d 1025, 1030 (Ind. Ct. App. 2011), a

       firearm in furtherance of the crime of murder, which happened when he shot

       Westlake five times. See, e.g., Cleveland v. State, 129 N.E.3d 227, 236 (Ind. Ct.

       App. 2019) (holding that, in evaluating a defendant’s claim about whether

       destruction of his firearm is inappropriate, “[t]his Court, along with our

       Supreme Court, has reasonably concluded that the General Assembly did not

       define ‘use’ to include an action like ‘possession’”); see also Trice v. State, 114

       N.E.3d 496, 500-01 (Ind. Ct. App. 2018). As such, the jury had to rely on

       different evidence and criminal actions in order to convict Mackin of both

       counts.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1651 | March 25, 2020   Page 6 of 9
[12]   Stated another way, there is not a reasonable possibility that the jury here relied

       on the same evidentiary facts to establish the essential elements of both of these

       crimes. Accordingly, we find that there was no double jeopardy violation.


                                         II. Appropriateness
[13]   Next, Mackin argues that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offenses and his character.


[14]   Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . 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.” The question is not whether another sentence is more

       appropriate, but whether the defendant’s specific sentence is inappropriate.

       Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). In determining

       whether the sentence is inappropriate, we will consider numerous factors such

       as culpability of the defendant, the severity of the crime, the damage done to

       others, and a “myriad [of] other factors that come to light in a given case.”

       Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant bears the

       burden of persuading us that his sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[15]   For a murder conviction, the maximum sentence is sixty-five years, and the

       minimum sentence is forty-five years. I.C. § 35-50-2-3(a). The advisory sentence

       is fifty-five years. Id. For a Level 4 felony conviction, the maximum sentence is

       twelve years, and the minimum sentence is two years. I.C. § 35-50-2-5.5. The

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1651 | March 25, 2020   Page 7 of 9
       advisory sentence is six years. Id. For an enhancement for a firearm used in the

       commission of murder, the trial court may impose an additional term of

       between five and twenty years. I.C. § 35-50-2-11(g). For an habitual offender

       adjudication for someone convicted of murder or a Level 1 through Level 4

       felony, the trial court may impose an additional term of between six and twenty

       years. I.C. § 35-50-2-8(i)(1). Here, the trial court imposed consecutive,

       maximum terms for each conviction, enhancement, and/or adjudication,

       resulting in an aggregate term of 117 years.


[16]   First, as to the nature of the offenses, Mackin has committed truly heinous

       actions. In cold blood, Mackin shot and killed Westlake for no apparent reason,

       other than a conflict over a romantic relationship. On the night in question,

       Masoner drove with Westlake to Mackin’s house to repair a truck. But, upon

       further evaluation, it seems that it was all a ruse by Mackin and Masoner to get

       close to Westlake so they could kill him. Then, after the deed was committed,

       Masoner disposed of the murder weapon, and Mackin drove off in the truck.

       Mackin even shaved his head, changed his physical appearance, and hid a

       second firearm so as to avoid detection. All the while, Mackin possessed not

       one, but two different firearms—weapons which he was legally proscribed from

       keeping on his person. Therefore, we find that the nature of the offenses does

       not render Mackin’s sentence inappropriate.


[17]   Next, as to Mackin’s character, Mackin has a criminal record that includes

       adjudications and convictions for attempted auto theft, theft, resisting law

       enforcement, robbery, burglary, and unauthorized absence from home

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1651 | March 25, 2020   Page 8 of 9
       detention. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007)

       (holding that “it is appropriate to consider such a [criminal] record as a poor

       reflection on the defendant’s character”). He has also violated probation and

       parole multiple times. His criminal record is severe enough that the jury

       adjudicated him to be both a serious violent felon and an habitual offender.

       And overall, the large number of offenses shows a clear disregard for the rule of

       law.


[18]   To make matters worse, Masoner testified that Mackin threatened him to keep

       quiet and lie or else Mackin would harm Masoner and his family. It is apparent

       to us that Mackin knew precisely what he was doing at every step of the way,

       and he went to great lengths to ensure that no one would find out about his

       criminal deeds. Mackin’s sheer disregard for Westlake’s life, the threatening

       Facebook posts, his lengthy criminal record, his multiple violations and

       revocations of parole and probation, and his behavior following the murder

       demonstrate that Mackin has no remorse for what he has done and has not

       learned the error of his ways. Thus, we find that Mackin’s character does not

       render his sentence inappropriate.


[19]   In sum, we will not revise Mackin’s sentence pursuant to Indiana Appellate

       Rule 7(B).


[20]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1651 | March 25, 2020   Page 9 of 9
