MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Dec 27 2018, 9:55 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                          Curtis T. Hill, Jr.
Bargersville, Indiana                                    Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Shakka Eugene Brogdon,                                   December 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-734
        v.                                              Appeal from the Hamilton Superior
                                                        Court
State of Indiana,                                        The Honorable Steven R. Nation,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29D01-1612-F3-9127



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018              Page 1 of 17
                                                Case Summary
[1]   Following a jury trial, Shakka Brogdon was found guilty of two counts of Level

      3 felony aggravated battery, stemming from his involvement in a fight in which

      one person died. The trial court merged the counts and sentenced Brogdon to

      sixteen years of incarceration. He raises two issues that we restate as:


                 I. Whether the trial court abused its discretion when it denied his
                 request for a continuance of the jury trial; and


                 II. Whether Brogdon’s sentence is inappropriate in light of the
                 nature of the offense and the character of the offender.


[2]   We affirm.


                                      Facts & Procedural History
[3]   Brogdon was one of four young men involved in a physical fight occurring

      during the afternoon of December 7, 2016. Earlier that day, Daniel Zuluaga

      and his long-time friend Cory Zimmer decided to purchase and smoke

      marijuana, although neither had any money. Zuluaga called his dealer, Joseph

      Coccaro and arranged a buy. Around 2:00 p.m., Zimmer and Zuluaga took

      Zuluaga’s mother’s SUV to Coccaro’s apartment complex.1 They parked the

      SUV, and Zimmer moved to the back seat, and Zuluaga moved to the driver’s

      seat. Zuluaga called Coccaro, who came down from his upstairs apartment,




      1
          Zimmer drove the SUV because Zuluaga did not have a driver’s license.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 2 of 17
      entered the car, and sat in the passenger seat. Coccaro gave Zuluaga the

      marijuana, and Zuluaga told him that he was not going to pay for it because

      Coccaro recently had shorted Zuluaga on an Adderall purchase. A

      disagreement ensued. While Coccaro was in the car with Zimmer and

      Zuluaga, Coccaro texted his friend and roommate, Brogdon, who at the time

      was getting a ride home from work. Coccaro told Brogdon that he was in a

      black Expedition, and Brogdon believed that Coccaro sounded “panicked.”

      Transcript Vol. 4 at 148. When Brogdon’s co-worker, Andrew Segal, dropped

      off Brogdon at the apartment complex, Segal saw Coccaro, who he knew, in an

      SUV with another individual. As Brogdon was exiting Segal’s car, Brogdon

      said to Segal something along the lines of “I’m about to beat this dude’s ass.”

      Transcript Vol. 3 at 74.


[4]   Meanwhile, in the SUV, Coccaro punched Zuluaga, and Zuluaga’s glasses flew

      off. As Zuluaga looked for his glasses, Coccaro continued to hit him. Zimmer,

      from the back seat, then started hitting Coccaro. Brogdon walked up to the

      SUV, entered the backseat, and began hitting Zimmer. At some point Zimmer

      and Brogdon moved from inside the car to outside of it and continued fighting.

      Zuluaga put the car in reverse, which caused Coccaro to stop hitting Zuluaga

      and jump out of the SUV. Coccaro joined Brogdon in punching Zimmer.

      Zuluaga shouted at them to stop, and Coccaro yelled back and threatened

      Zuluaga that if he told the police that “he would f-ing kill” him. Id. at 101.

      Zuluaga drove away, looped around the parking lot, and returned to see

      Brogdon still hitting Zimmer and Coccaro running to a car while yelling to


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 3 of 17
      Brogdon to leave with him. Zuluaga recalled that as Coccaro was running

      away, Zimmer was standing, but when Zuluaga looked back from Coccaro to

      Brogdon, Zimmer was on the ground on his back. Brogdon thereafter got into a

      car with Coccaro and the two left.


[5]   Zuluaga helped Zimmer sit up and tried to get Zimmer to his feet, but was

      unable to support him or get him to the SUV. Zimmer was breathing heavily

      and bleeding from his face. Meanwhile, Brogdon and Coccaro had returned to

      their apartment and, from their balcony, Brogdon yelled down to Zuluaga, “I

      should come down and get you too, mother f-er.” Id. at 109. Zuluaga got

      scared and ran to the SUV. When he attempted to call for help, he found that

      his phone was shattered and Zimmer’s lacked power. Zuluaga then drove

      home, leaving Zimmer in the parking lot. Rather than calling 911, Zuluaga

      called Zimmer’s mother.


[6]   Meanwhile, at around 1:45 p.m., Jane Flanders heard screaming and looked

      out her apartment window and saw Brogdon and Coccaro in an argument with

      the driver of an SUV. Moments later, she saw the SUV “peeling out” and, at

      that time, she saw Coccaro and Brogdon standing by Coccaro’s car together

      and they “fist-bumped” each other. Id. at 146. After that, Flanders left her

      apartment for an appointment, and she saw Zimmer “laying flat” in the parking

      lot. Id. at 149. She called 911 and an EMT arrived at 2:40 p.m. By the time

      Zimmer was placed in the ambulance, the emergency personnel could not find

      a pulse. They attempted to revive Zimmer but were unsuccessful.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 4 of 17
[7]   According to a subsequent autopsy, Zimmer died from a combination of

      multiple injuries, including blunt force trauma to his head. Zimmer’s left

      orbital bone under the eye was fractured, he had contusions to his face and

      head in a circular shape consistent with a brass knuckle or shoe, and he had a

      fractured skull. The skull fracture was consistent with Zimmer falling to the

      ground from a minimum of about six feet or being struck while already on the

      ground.


[8]   On the evening of December 7, police questioned Brogdon, Coccaro, Coccaro’s

      girlfriend Megan, and their friend Dylan. Brogdon denied having any

      knowledge of the incident. When Brogdon and Megan were left alone at the

      police station, Brogdon was recorded telling Megan not to say anything. Two

      days later, Brogdon was arrested. After his arrest, Brogdon gave a second

      statement indicating that he joined the fight because Coccaro asked for help and

      that it was Coccaro who kicked Zimmer in the head. Brogdon admitted to

      police that he hit Zimmer “in order for him to pass out.” Transcript Vol. 4 at

      211.


[9]   On December 9, 2016, the State charged Brogdon with: Count I, involuntary

      Manslaughter, a Level 5 felony; Count II, aggravated battery, a Level 3 felony;

      and Count III, aggravated battery, a Level 3 felony. The State charged his co-

      defendant, Coccaro, with the same offenses, and also Count IV, intimidation, a

      Level 6 felony, and Count V, dealing in marijuana, a Level 6 felony.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 5 of 17
[10]   Trial initially was set for February 6, 2017. Thereafter, Brogdon sought and

       received ten continuances of the trial setting. Ultimately, by order of October

       19, 2017, the trial was set for January 8, 2018. On or around December 14,

       2017, Brogdon learned that on December 5 Coccaro had pled guilty and signed

       a special factual basis, a copy of which was provided to Brogdon upon his

       request. On December 21, the trial court held Coccaro’s guilty plea hearing and

       set the sentencing hearing for February 22, 2018.2


[11]   On December 22, 2017, about two weeks prior to trial, Brogdon filed an

       “Eleventh Motion for Continuance” requesting a continuance of trial so that he

       could depose Coccaro after Coccaro’s February 22, 2018 sentencing hearing.

       Appellant’s Appendix Vol. II at 86. Brogdon asserted that Coccaro “has essential

       exculpatory information that will affect the defense strategy in this matter,” and

       he was seeking a continuance until after Coccaro was sentenced, when Coccaro

       “no longer possesses a 5th Amendment privilege against self-incrimination for

       any participation that he might have had in this matter.” Id. at 88. Brogdon

       sought a continuance “to allow for a deposition of Witness Coccaro so that

       [Brogdon] has the ability to fully investigate all available defenses in this

       matter.” Id. at 89. The State objected to the continuance, asserting that (1) it

       did not intend to call Coccaro as a witness, and (2) the factual basis for

       Coccaro’s plea was not exculpatory for Brogdon.




       2
        According to the State, “Coccaro pleaded guilty to involuntary manslaughter and aggravated battery with
       an agreement that the involuntary manslaughter was a lesser included offense.” Appellee’s Brief at 23.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018              Page 6 of 17
[12]   The trial court considered Brogdon’s request for a continuance at the December

       29, 2017 final pretrial hearing. In support of his motion, Brogdon argued that

       Coccaro is “a material fact witness, an eyewitness, and a participant to the

       event all rolled into one,” and he urged the trial court to allow a continuance to

       allow Brogdon the opportunity to investigate what Coccaro “may or may not

       have to say if he actually loses that 5th Amendment privilege against self-

       incrimination.” Transcript Vol. 2 at 6. Counsel conceded, “I don’t know what

       [Coccaro] may provide to us, but I think that he could provide exculpatory

       information” that “could change the defense strategy of Mr. Brogdon” and that

       Brogdon “should be allowed the opportunity to question [Coccaro] on that.”

       Id. at 14.


[13]   The State responded that, first, “[Coccaro’s] factual basis . . . is not

       exculpatory,” and, second, even if Coccaro were to say something else in a

       deposition that was exculpatory, then “you have a witness that’s given four or

       five different statements. How is that exculpatory.” Id. at 9, 11. The State

       argued that the sought continuance was “a delay for the sake of delay” and

       should be denied. Id. at 11. The State informed the court that it had twenty

       witnesses “lined up and ready for this trial on January 8th,” including a

       pathologist and a witness in Florida. The State observed that any continuance

       would delay the case at least until March, and the State had “no idea” whether

       the witnesses would be available then. Id. The trial court denied Brogdon’s

       motion for continuance. Prior to the start of trial, Brogdon renewed the

       motion, and the trial court affirmed its prior ruling.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 7 of 17
[14]   During the January 8-12, 2018 jury trial, the State argued that Zimmer’s fatal

       skull fracture was caused by Zimmer hitting the back of his head on the ground

       after being knocked out by a punch from Brogdon. The State also argued that

       even if the fatal injury was caused by Coccaro, Brogdon was still guilty as an

       accomplice. Brogdon argued that he went to the scene because Coccaro

       seemed panicked, and when he approached the SUV he saw Zuluaga and

       Zimmer hitting Coccaro. According to Brogdon, Coccaro begged Brogdon to

       help him and that, in response, Brogdon yanked Coccaro out of the SUV.

       Brogdon stated that Zimmer then pulled him into the car, hit him, and the two

       grappled. Brogdon described that as he was getting out of the car, Zimmer hit

       him again and they began fighting outside the SUV. Brogdon testified that at

       one point when he hit Zimmer, Zimmer fell to his knees or a sitting position,

       and then Coccaro “soccer kicked” Zimmer, who fell back and hit the ground.

       Transcript Vol. 4 at 163. Brogdon stated that Coccaro “proceeded to . . . stomp”

       Zimmer in the face two or three times. Id. at 165. Although Brogdon admitted

       that he punched Zimmer multiple times, he testified he did so in defense of

       himself and Coccaro. Brogdon stated that he never touched Zimmer while

       Zimmer was lying on the ground. Brogdon admitted that, after the fight, he

       yelled down from the balcony at Zuluaga as he was trying to help Zimmer.


[15]   A jury found Brogdon guilty of two counts of Level 3 felony aggravated battery

       as an accomplice, but acquitted him of involuntary manslaughter. On March

       22, 2018, the trial court merged Counts II and III, and entered judgment of

       conviction on only Count III.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 8 of 17
[16]   At his sentencing hearing, Brogdon expressed remorse to Zimmer’s family,

       asked for forgiveness, and stated that Zimmer’s death “haunts [him] every

       single day.” Transcript Vol. 5 at 140. Brogdon acknowledged that what he did

       was wrong and stated that he accepted responsibility for it, but maintained that

       he acted to defend himself. He expressed regret that he did not do more “to

       stop [] Coccaro from doing what he did.” Id. at 141. Brogdon asked the trial

       court for the advisory sentence of nine years.


[17]   In its sentencing order, the trial court identified three aggravators: (1) Brogdon

       had “a history of criminal behavior . . . , including write-ups for failure to obey

       and battery while at the Indiana Department of Correction”; (2) Brogdon

       “recently violated conditions of probation . . . , including that [he] was on

       probation when this offense was committed”; and (3) “[t]he nature of the

       crimes of violence against a person in that, specifically, [Brogdon] failed to seek

       medical attention for the victim and [Brogdon] took actions to avoid detection

       or facts relating to the crime.” Appellant’s Appendix Vol. II at 218. The trial

       court found no mitigators, declining to find Brogdon’s remorse as mitigating

       because it found his statements to be too inconsistent. The trial court sentenced

       Brogdon to the sixteen years in the Indiana Department of Correction. He now

       appeals.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 9 of 17
                                          Discussion & Decision
                                             Motion for Continuance

[18]   Brogdon contends that the trial court abused its discretion when it denied his

       request for “a three-month continuance to permit [him] the opportunity to

       decide whether to call Coccaro as a witness.” Appellant’s Brief at 17. Rulings on

       non-statutory motions for continuance are within the trial court’s discretion and

       will be reversed only for an abuse of discretion and resultant prejudice.3

       Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018). An abuse occurs only where

       the trial court’s decision is clearly against the logic and effect of the facts and

       circumstances. Id. “An abuse of discretion may be found in the denial of a

       motion for a continuance when the moving party has shown good cause for

       granting the motion,” but “no abuse of discretion will be found when the

       moving party has not demonstrated that he or she was prejudiced by the

       denial.” In re K.W., 12 N.E.3d 241, 244 (Ind. 2014). “‘There is a strong

       presumption that the trial court properly exercised its discretion.’” Robinson, 91

       N.E.3d at 577 (quoting Warner v. State, 773 N.E.2d 239, 247 (Ind. 2002)).


[19]   Here, on December 22, 2017, Brogdon sought a continuance of the January 8,

       2018 trial date so that he could depose Coccaro following Coccaro’s February



       3
         A “defendant is statutorily entitled to a continuance where there is an ‘absence of material evidence,
       absence of a material witness, or illness of the defendant, and the specially enumerated statutory criteria are
       satisfied.’” Gibson v. State, 43 N.E.3d 231, 236 (Ind. 2015) (quoting Elmore v. State, 657 N.E.2d 1216, 1218
       (Ind. 1995) (citing Ind. Code § 35-36-7-1)). Brogdon makes no claim that he was entitled to a continuance as
       a matter of right.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018                  Page 10 of 17
       22 sentencing hearing, when Coccaro would lose his Fifth Amendment

       privilege against self-incrimination, and then Brogdon could decide whether to

       call Coccaro as a witness at trial. Brogdon’s position is that Coccaro may have

       had exculpatory evidence or at least had testimony that would have

       corroborated Brogdon’s self-defense claim. In support, Brogdon observes that,

       in one of Coccaro’s statements to police, Coccaro said that while he was in the

       vehicle with Zuluaga and Zimmer, he texted “I need you” to Brogdon, who

       arrived to help Coccaro. Appellant’s Appendix Vol. II at 27. According to

       Coccaro’s statement, Brogdon was mad that he had to become involved and

       “save” Coccaro. Id. On appeal, Brogdon argues that Coccaro’s statement

       about Brogdon arriving to help and save Coccaro “corroborated Brogdon’s

       testimony” and was “extremely crucial to Brogdon’s self-defense claim.”

       Appellant’s Brief at 15. Brogdon urges that any prejudice to the State from a

       continuance would have been minimal, as the State would have suffered only

       the inconvenience of the need to reschedule witnesses, but that the harm to

       Brogdon “was extreme” because “[h]ad Brogdon called Coccaro as a witness,

       the jury may not have rejected his claim of self-defense.” Id. at 12. Brogdon

       claims that the trial court’s ruling thereby denied him the opportunity to fully

       exercise his right to present a defense under the Sixth Amendment and the Due

       Process Clause. Id. at 15. We disagree and find no abuse of discretion and no

       violation of Brogdon’s right to present a defense.


[20]   Here, just a few weeks before trial, Brogdon filed his eleventh motion for

       continuance. While a number of the prior continuances were related to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 11 of 17
discovery, the trial had been delayed at that point by almost a year. The State

had twenty witnesses arranged to appear at the January 8 trial, including a

doctor and a witness coming from Florida. Any continuance would have

delayed the trial by at least another three months. Brogdon sought the

continuance in order to have the opportunity to (1) depose co-defendant

Coccaro after Coccaro had been sentenced, and (2) decide whether to call

Coccaro as a witness. While Brogdon maintains that Coccaro may have

offered testimony that corroborated Brogdon’s self-defense claim – based on the

fact that Coccaro in one statement to police stated the Brogdon arrived after the

fight and came with the purpose of saving Coccaro – other statements that

Coccaro made to police were more incriminating of Brogdon and indicated that

(1) Brogdon pulled Zimmer from the vehicle and was “kicking [Zimmer’s] ass,”

(2) Coccaro saw Brogdon punch and kick Zimmer while he was on the ground,

and (3) Brogdon had stated that he hoped he had not killed Zimmer. Appellant’s

Appendix Vol. II at 27-28. At best, any trial testimony that Coccaro would have

given, even if to some degree exculpatory, would have been conflicting with his

other statements. We agree with the State that Brogdon’s “mere speculation

that Coccaro may have provided corroborating testimony did not meet

[Brogdon’s] obligation to prove prejudice” stemming from the trial court’s

denial of his request for a continuance. Appellee’s Brief at 17. Based on the

circumstances before us, we find no error with the trial court’s denial of

Brogdon’s motion for continuance.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 12 of 17
                                           Inappropriate Sentence

[21]   Brogdon claims that his sixteen-year sentence is inappropriate. Pursuant to Ind.

       Appellate Rule 7(B), this Court “may 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.” Our Supreme Court has explained that the principal role of

       appellate review should be to attempt to leaven the outliers, “not to achieve a

       perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). Sentencing review under Appellate Rule 7(B) is very deferential to

       the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such

       deference should prevail unless overcome by compelling evidence portraying in

       a positive light the nature of the offense (such as accompanied by restraint,

       regard, and lack of brutality) and the defendant’s character (such as substantial

       virtuous traits or persistent examples of good character).” Stephenson v. State, 29

       N.E.3d 111, 122 (Ind. 2015).


[22]   The determination of whether we regard a sentence as inappropriate “turns on

       our sense of the culpability of the defendant, the severity of the crime, the

       damage done to others, and myriad other factors that come to light in a given

       case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

       N.E.2d at 1224). The question under App. R. 7(B) is “not whether another

       sentence is more appropriate” but rather “whether the sentence imposed is

       inappropriate.” Miller v. State, 105 N.E.3d 194, 196 (Ind. Ct. App. 2018).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 13 of 17
       Brogdon bears the burden of persuading us that his sentence is inappropriate.

       Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied.


[23]   In order to assess the appropriateness of a sentence, we first look to the

       statutory range established for the classification of the relevant offenses.

       Brogdon was convicted of a Level 3 felony. The sentencing range for a Level 3

       felony is three to sixteen years, with an advisory sentence of nine years. Ind.

       Code § 35-50-2-5. In this case, Brogdon received the maximum sentence of

       sixteen years, and he asks this court to revise his sentence to the advisory of

       nine years.


[24]   As this court has recognized, “[t]he nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011).

       Brogdon argues that his friend Coccaro “started a fight over drugs and solicited

       Brogdon’s help.” Appellant’s Brief at 12. Brogdon asserts that, “[a]lthough [he]

       is responsible for Coccaro’s acts, he had no idea Coccaro was going to escalate

       the fight.” Id. at 20. Brogdon asserts that from the fact that the jury acquitted

       him of involuntary manslaughter, it can be inferred “the jury found that

       Coccaro, not Brogdon, delivered the blow that killed Zimmer.” Id. at 19.

       Brogdon maintains that his culpability was thus less than Coccaro’s, who

       received a nine-year sentence, and that his “maximum sentence should be

       revised to reflect his lesser culpability.” Id. at 12. We disagree that the nature

       of the offense warrants a reduction in his sentence.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 14 of 17
[25]   Even if it was Coccaro who started the fight that ultimately resulted in

       Zimmer’s death, and even if Brogdon responded to the scene in order to help or

       save Coccaro, the evidence favorable to the verdict is that Brogdon punched

       Zimmer, pulled him from the vehicle, and continued to fight with him even

       after Coccaro ran away and yelled at Brogdon to leave too. Brogdon admitted

       at trial that he punched Zimmer in the head three times, and he had previously

       told officers that he punched Zimmer as many as six times. In a statement to

       police, Brogdon said that he hit Zimmer “in order for him to pass out.”

       Transcript Vol. 4 at 211. Even if Coccaro “soccer kicked” Zimmer, as Brogdon

       claims, Brogdon did nothing to stop it and, afterward, Brogdon and Coccaro

       “fist bumped” in celebration of their accomplishments. Id. at 163; Transcript

       Vol. 3 at 146. We cannot say that the nature of the offense warrants a reduced

       sentence.


[26]   “The character of the offender is found in what we learn of the offender’s life

       and conduct.” Croy, 953 N.E.2d at 664. Brogdon urges that he had a “rough

       childhood,” which included not having his father as part of his life, moving

       residences frequently, and having older brothers that were negative influences

       and included him in criminal activity. He urges that he “has a relatively minor

       juvenile record” and that his criminal history is “similar to that of Coccaro’s.”

       Appellant’s Brief at 21. He argues that, “[a]s to their character, the only

       difference is that Coccaro plead guilty and Brogdon did not” and that “[t]he fact

       that [Brogdon] exercised that right does not justify a maximum sentence where




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 15 of 17
       the principal received the advisory[.]” Id. He maintains that “the only

       appropriate sentence is one similar to [] Coccaro[’s].” Id. at 22. We disagree.


[27]   The court found as aggravating Defendant’s criminal history, his history of

       misconduct while incarcerated, and his history of crime while on probation.

       The record reflects that, as a juvenile, Brogdon had one true finding for what

       would be a Class D felony drug possession. When Brogdon was eighteen years

       old, he aided his brothers in committing a residential burglary and robbery, for

       which Brogdon pled guilty to Class B felony robbery and burglary and received

       concurrent sentences of ten years with six years suspended. Brogdon was still

       on juvenile probation when he committed the burglary and robbery, and he was

       on probation for those convictions when he committed the present offense. In

       2013, he was convicted of possession of a cell phone while incarcerated, a Class

       A misdemeanor. In 2015, Brogdon “was written up” for battery and refusing to

       obey an order while in DOC, and he has received “several verbal and written

       warnings” while in the Hamilton County Jail. Appellant’s Appendix Vol. III at 7.


[28]   When police first spoke to Brogdon in this case, he lied and represented that he

       knew nothing about it. He also told another witness to say the same. As

       Zuluaga was attempting to help Zimmer, Brogdon, from his apartment balcony,

       threatened Zuluaga, “I should come down and get you too, mother f-er.”

       Transcript Vol. 3 at 109. We cannot say that Brogdon’s character warrants

       downward revision of his sentence.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 16 of 17
[29]   We reiterate that our task on appeal is not to determine whether another

       sentence might be more appropriate; rather, the inquiry is whether the imposed

       sentence is inappropriate. Barker, 994 N.E.2d at 315. Brogdon has failed to

       carry his burden of establishing that his sentence is inappropriate in light of the

       nature of the offense and his character.


[30]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-734 | December 27, 2018   Page 17 of 17
