MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Oct 02 2019, 9:10 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            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
R. Brian Woodward                                        Curtis T. Hill, Jr.
Crown Point, Indiana                                     Attorney General of Indiana
                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Damon Guy Hill,                                          October 2, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1178
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Clarence D.
Appellee-Plaintiff                                       Murray, Judge
                                                         Trial Court Cause No.
                                                         45G02-1703-F5-31



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1178 | October 2, 2019                 Page 1 of 11
[1]   Damon Guy Hill appeals the sentence imposed by the trial court after he

      pleaded guilty to Level 5 Felony Reckless Homicide.1 Hill argues that (1) the

      trial erred by relying on improper sentence aggravators; and (2) the sentence

      should be revised in light of the nature of the offense and Hill’s character.

      Finding no reversible error and that the sentence is not inappropriate, we

      affirm.


                                                     Facts
[2]   On March 21, 2017, Hill and his cousin, Corey Brazelton, were at Hill’s

      mother’s house in Gary with some friends. Hill and the others were smoking

      marijuana and listening to music. While listening to music, Hill pulled out a

      handgun and began dancing with the gun in his hand. As he danced, Hill

      accidentally discharged the gun and fatally shot Corey in the chest. Hill initially

      told police that Corey had been shot during a drive-by shooting, but eventually

      admitted that he had shot Corey on accident.


[3]   On March 23, 2017, the State charged Hill with Level 5 felony reckless

      homicide and Level 6 felony criminal recklessness. On April 20, 2018, the State

      amended the charging information to include a firearm enhancement, alleging

      that both the reckless homicide and criminal recklessness had been committed

      with a firearm. On February 15, 2019, Hill pleaded guilty to reckless homicide




      1
          Ind. Code § 35-42-1-5.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1178 | October 2, 2019   Page 2 of 11
      pursuant to a plea agreement, which also provided that the State would dismiss

      the criminal recklessness charge and the firearm enhancement.


[4]   At a sentencing hearing on April 26, 2019, the trial court sentenced Hill to a

      five-year sentence, with four years executed at the Department of Correction

      and one year suspended to formal probation. In determining Hill’s sentence, the

      trial court found as aggravating factors the nature and circumstances of the

      crime, Hill’s attempt to lie and conceal the crime, Hill’s contemporaneous use

      of marijuana, and Hill’s possession of a handgun without a license. As

      mitigating factors, the trial court noted Hill’s lack of criminal history and that

      he pleaded guilty; however, it did not consider Hill’s limited criminal history to

      be a significant mitigating factor because “one would not expect any individual

      of Mr. Hill’s age to have a significant criminal history.” Tr. Vol. III p. 35. 2 Hill

      now appeals.


                                        Discussion and Decision
                                                  I. Aggravators
[5]   Hill first argues that the trial court erred in the sentencing process. Specifically,

      he challenges each of the sentence aggravators and argues further that the trial

      court improperly “used the elements of the offense to aggravate Hill’s sentence

      without a corresponding finding that the elements were particularly heinous,”




      2
          At the time of the incident, Hill was twenty-one years old.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1178 | October 2, 2019   Page 3 of 11
      appellant’s br. p. 8, and that the court relied on facts not supported by the

      record.


[6]   Sentencing decisions are within the sound discretion of the trial court and we

      thus afford great deference to the trial court’s judgment. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. The trial court

      must enter a sentencing statement that includes “a reasonably detailed

      recitation of the trial court’s reasons for imposing a particular sentence.” Id. The

      trial court may err in its sentencing process if, among other things, it relies on

      aggravators not supported by the record or are improper as a matter of law. Id.

      at 490-91. We will not review the relative weight the trial court gave to any

      properly found aggravators or reasons. Id. at 491.


[7]   The trial court articulated the following aggravating circumstances in its

      sentencing statement:


              1. The Court finds the nature and circumstances of the crime to
                 be a significant aggravating factor in that [Hill] shot the
                 victim, his cousin, while in the process of smoking a
                 marijuana blunt, dancing and waving a handgun at the
                 victim. The victim died. [Hill] attempted to conceal his
                 involvement in the crime by resorting to lies and subterfuge
                 with the police. Specifically, [Hill] initially told police that his
                 cousin was shot by a drive-by assailant. The Court finds
                 [Hill’s] efforts to conceal the crime to be a significant
                 aggravating factor.


              2. The Court also finds that [Hill’s] act of smoking marijuana,
                 an illegal substance, to also be an aggravating factor. Finally
                 the Court finds that the defendant was in possession of a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1178 | October 2, 2019   Page 4 of 11
                  handgun without a license at the time of the commission of
                  the offense.


      Appealed Order p. 1.


                   A. Nature and Circumstances of the Crime
[8]   The nature and circumstances of a crime is generally considered to be a valid

      aggravating factor for the trial court to use in sentencing. McCann v. State, 749

      N.E.2d 1116, 1120 (Ind. 2001). In doing so, the court must explain “what about

      this crime was worse than a typical [offense]”—meaning here, it must explain

      what about Hill’s offense was worse than a typical Level 5 felony reckless

      homicide. Smith v. State, 872 N.E.2d 169, 178-79 (Ind. Ct. App. 2007); see also

      Ind. Code § 35-38-1-7.1(a) (providing that in imposing a sentence, the trial court

      may consider as an aggravating circumstance whether “[t]he harm, injury, loss,

      or damage suffered by the victim of an offense was . . . greater than the

      elements necessary to prove the commission of the offense”). The trial court

      may not, however, use a material element of the offense as an aggravating

      circumstance, Caraway v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011),

      which Hill argues the trial court did here.


[9]   In its sentencing statement, the trial court specified that the nature and

      circumstances were significantly aggravating because Hill “shot the victim . . .

      while in the process of smoking a marijuana blunt, dancing and waving a

      handgun at the victim.” Appealed Order p. 1. At the sentencing hearing, the

      trial court further explained:


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1178 | October 2, 2019   Page 5 of 11
                  This doesn’t make sense. Whatever the relationship was between
                  these two men it was destroyed in a split second because they
                  were getting high and playing with a gun. That is absolutely
                  outrageous. That’s crazy. That doesn’t make sense. And so the
                  outcome is equally nonsensical. The gun goes off and someone
                  dies. So incredibly tragic. So incredibly deadly. And so incredibly
                  reckless.


       Tr. Vol. III p. 37. Though the trial court mentions recklessness and the death of

       the victim in its reasoning,3 it did not improperly rely on those elements of the

       offense in determining that the nature and circumstances was an aggravating

       factor; instead, we find that the trial court was merely explaining why this crime

       was worse than a typical Level 5 felony reckless homicide.


                                                B. Concealment
[10]   Hill also argues that his initial effort to conceal the crime should not have been

       found to be an aggravator because he “almost immediately recanted” and

       confessed to the police. Appellant’s Br. p. 14. But the fact remains that Hill,

       despite eventually coming forward with the truth, “initially resorted to lies and

       subterfuge in order to conceal the crime” by telling police it was a drive-by

       shooting. Tr. Vol. III p. 35. We agree that this “initially frustrated the efforts of

       law enforcement to solve a crime,” id., and find no error in the trial court’s

       conclusion that it was an aggravating factor.4 If anything, the trial court already




       3
           A person who commits reckless homicide “recklessly kills another human being.” I.C. § 35-42-1-5.
       4
         The State correctly points out that a person who “gives a false report of the commission of a crime or gives
       false information in the official investigation of the commission of a crime, knowing the report or

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1178 | October 2, 2019                    Page 6 of 11
       accounted for Hill’s later confession by finding his admission via plea

       agreement to be a mitigating circumstance.


                                            C. Marijuana Use
[11]   Hill next contends that his marijuana use at the time of the offense was not an

       appropriate aggravating circumstance. Hill focuses his argument on whether

       using marijuana had a causal effect on or contributed in some form to Corey’s

       death. Regardless, the fact remains that Hill was using marijuana, an illegal

       substance, at the time of the offense. The trial court did not err in determining

       that Hill’s marijuana use was an aggravating circumstance.


                  D. Possession of Handgun Without a License
[12]   Lastly, Hill challenges the trial court’s finding that Hill possessed a handgun

       without a license to be an aggravating circumstance, arguing that this

       aggravator is improper as a matter of law because he was not legally required to

       possess a license at the time of the incident and that there is no support in the

       record for this aggravator. We agree. Though a license is typically required to

       carry a handgun, a person may carry a handgun without a license if “the person

       carries the handgun . . . on property that is owned, leased, rented, or otherwise

       legally controlled by the person,” or if the person carries the gun “on property

       that is owned, leased, rented, or otherwise legally controlled by another person,




       information to be false” commits a Class B misdemeanor, Ind. Code § 35-44.1-2-3, which further supports
       our conclusion that the trial court’s finding of Hill’s false report to be an aggravator was appropriate.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1178 | October 2, 2019                 Page 7 of 11
       if the person . . . has the consent of the owner, renter, lessor, or person who

       legally controls the property to have the handgun on the premises.” Ind. Code §

       35-47-2-1(b)(1), (2).


[13]   Here, the record shows that Hill was not licensed to carry a handgun, but at the

       time of the offense, he was in his mother’s home, and his mother was aware he

       had the gun in her home. See Tr. Vol. III p. 8-9. In its sentencing statement, the

       trial court explained that the aggravating circumstance was Hill’s “possession of

       a handgun without a license at the time of the commission of the offense,”

       appealed order p. 1 (emphasis added), not his potentially unlicensed possession

       of a gun in the days or weeks leading up to the incident, outside the setting of

       Hill’s mother’s home. Nothing in the record establishes that Hill carried the

       handgun illegally at the time the offense occurred. As such, we agree that it was

       improper for the trial court to find this to be an aggravating circumstance.


[14]   Even though the trial court committed error with respect to this aggravator,

       there are still multiple valid aggravating circumstances that support the trial

       court’s sentencing judgment. “A sentence enhancement may still be upheld

       when a trial court improperly applies an aggravator but other valid aggravators

       exist.” Cox v. State, 780 N.E.2d 1150, 1156 (Ind. Ct. App. 2002). And even if we

       do find an aggravator to be improper, we will remand for resentencing only “if

       we cannot say with confidence that the trial court would have imposed the

       same sentence had it properly considered reasons that enjoy support in the

       record.” Anglemyer, 868 N.E.2d at 491. Given the presence of multiple valid

       aggravators and the fact that the unlicensed possession aggravator was not

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1178 | October 2, 2019   Page 8 of 11
       indicated as “significant,” we find that the trial court would have imposed the

       same sentence even without the challenged aggravator and that Hill is not

       entitled to resentencing on this basis.


                                         II. Appropriateness
[15]   Hill’s second argument on appeal is that the sentence imposed by the trial court

       is inappropriate in light of the nature of the offense and his character. Indiana

       Appellate Rule 7(B) provides that this Court may revise a statutorily authorized

       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.” In conducting this review, “substantial deference”

       must be given to the trial court’s decision, “since the ‘principal role of [our]

       review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting

       Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal citations

       omitted).


[16]   For Level 5 felony reckless homicide, Hill faced a term of one to six years, with

       an advisory sentence of three years. I.C. § 35-50-2-6(b). The trial court imposed

       a five-year sentence, with four years executed at the Department of Correction

       and one year suspended to formal probation.


[17]   With respect to the nature of the offense, we again note that Hill was smoking

       marijuana while dancing and waving a gun around in front of his cousin when

       the gun discharged. Hill then lied to police about what happened, changing his

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1178 | October 2, 2019   Page 9 of 11
       story only once confronted with conflicting statements given by his family. The

       trial court also emphasized the impact the offense had on Hill’s and Corey’s

       family, noting that it had “shatter[ed] [the] family” and was simply

       “nonsensical” and “tragic.” Tr. Vol. III p. 36-37. Even Hill admitted that Corey

       had been “like [his] little brother,” id. at 34, further exacerbating the overall

       tragedy of the crime.


[18]   With respect to Hill’s character, we recognize that Hill had no history of

       criminal convictions and admitted guilt via a plea agreement. Hill admits that

       he began smoking marijuana at age twelve, and that since age thirteen or

       fourteen he smoked marijuana every day until when he was arrested for the

       present offense at age twenty-one. See, e.g., Cook v. State, 119 N.E.3d 1092, 1098

       (Ind. Ct. App. 2019) (noting defendant’s daily marijuana use for several years

       up to the time of the murder offense at issue as relevant to defendant’s character

       in 7(B) analysis). Hill also began drinking alcohol at age fifteen and continued

       to do so every day until he was arrested.


[19]   We agree that the above circumstances and aspects of Hill’s character are by no

       means the worst of the worst—but the trial court recognized as much when it

       chose to not impose the maximum sentence and ordered that a portion of the

       sentence will be suspended to probation. We do not find the sentence imposed

       by the trial court to be inappropriate in light of the nature of the offense and

       Hill’s character.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1178 | October 2, 2019   Page 10 of 11
[20]   The judgment of the trial court is affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1178 | October 2, 2019   Page 11 of 11
