MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            May 23 2018, 8:46 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
Frederick A. Turner                                     Curtis T. Hill, Jr.
Bloomington, Indiana                                    Attorney General of Indiana
                                                        Katherine Modesitt Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Johnny Moore,                                           May 23, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        53A04-1706-CR-1269
        v.                                              Appeal from the Monroe Circuit
                                                        Court
State of Indiana,                                       The Honorable Teresa D. Harper,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        53C09-1608-MR-701



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018           Page 1 of 21
[1]   Johnny Moore (“Moore”) was convicted of felony murder and Level 4 felony

      burglary in Monroe Circuit Court. Moore raises four issues on appeal which we

      restate as:


                I.    Whether the trial court abused its discretion when it
                      admitted certain evidence at trial;

               II.    Whether there was sufficient evidence to support Moore’s
                      convictions;

              III.    Whether Moore’s convictions for felony murder and
                      burglary violated Indiana’s prohibition against double
                      jeopardy; and

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

      We affirm.


                                 Facts and Procedural History
[2]   Moore and Billie Jean Edison (“B.J.”) met in June 2016. Moore supplied B.J.

      with drugs, and she used two drug runners in Bloomington, Indiana, Regena

      Dixon (“Dixon”) and Ryan Tharp (“Tharp”), to sell the drugs. Moore regularly

      fronted B.J. drugs and she would then front them to Dixon and Tharp. B.J. was

      then responsible for paying Moore back once she received money from Dixon

      and Tharp. B.J. knew two other individuals in Bloomington who she felt would

      make ideal customers for Moore—Jarrod Crouch (“Crouch”) and Brittany

      Sater (“Brittany”). And B.J. introduced Moore to both of them that summer.


[3]   In August 2016, B.J. fronted Tharp roughly $1,000 worth of drugs she received

      from Moore. Several hours after Tharp was scheduled to return with B.J.’s
      Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018   Page 2 of 21
      money, she had not heard from Tharp and was unable to reach him. B.J. was

      scared because she knew she needed to pay Moore back the money. B.J. knew

      that Tharp had previously received his drugs from Brittany, so she visited

      Brittany in Bloomington to see if Brittany had heard from Tharp. Moore went

      with B.J., and they were also visiting Britany to see if she wanted to try some of

      Moore’s heroin because they “had heard that her dope wasn’t that good.” Tr.

      Vol. 4, p. 158. Brittany called Tharp for B.J., and she also tried the heroin

      Moore brought, but she did not like it. B.J. visited Brittany three or four times

      over the next several days to see if she had seen Tharp and also to bring her

      more drugs.


[4]   On August 27, 2016, Moore called B.J. and told her that they were going to

      travel to Bloomington “to collect money from [Crouch] . . . and take care of

      Brittany.” Id. at 162. Three vehicles traveled to Bloomington that evening:

      Moore and B.J. in Moore’s Cadillac; Dennis Webb (“Webb”) in B.J.’s

      Expedition; and Eric Jones (“Jones”) and his female friend in a F-150 Pickup.

      They arrived in Bloomington around 9:30 p.m. and headed to Crouch’s house

      which he shared with B.J.’s brother Billy Edison (“Billy”).

[5]   Moore, B.J., Webb, and Jones all went inside, and Moore and Webb began

      questioning Crouch about the money and drugs that he owed. Meanwhile, B.J.

      walked towards the back bedroom to look for her brother Billy. She found Billy

      holding a Norinco SLS .762 rifle (the “rifle”). Moore noticed Billy holding the

      rifle, and Moore asked him, “Were you going to shoot me with that f[******]

      gun?” Id. at 169. Moore took the gun from Billy and walked back into the living

      Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018   Page 3 of 21
      room where he hit Crouch in the head with the butt of the rifle. Moore then

      directed Crouch to go with Jones and collect the money he owed. Moore also

      took the rifle with him for partial payment of Crouch’s debt.


[6]   Moore, Webb, and B.J. then left Crouch’s. Just before leaving, Moore looked at

      B.J. and told her, “We going to do what we talked about. We’re going to

      Brittany’s.” Id. at 174. Moore had told B.J. “on several [previous] occasions

      that if Brittany didn’t buy dope from [them] that he was going to rob her over

      and over again so she couldn’t buy her own product from someone else.” Id. at

      176. B.J. parked the Expedition with Webb in the passenger seat in a parking

      lot near Brittany’s back door. Moore drove the Cadillac, and he parked nearby

      in an adjacent parking lot.


[7]   B.J. and Webb walked up to Brittany’s back door where B.J. knocked. As soon

      as Brittany opened the door, Webb put the rifle up to her head. Brittany began

      flailing her arms and trying to knock the gun away. Webb moved the rifle down

      and pointed it at Brittany’s abdomen as he walked her backwards toward her

      bedroom. Once inside the bedroom, Webb shot Brittany once in the abdomen.

      B.J. ran frantically outside to Moore’s vehicle and told him that Webb had shot

      Brittany. Moore told B.J. to “get [her] f[******] ass back in the house and help

      him get the stuff.” Id. at 194.


[8]   When B.J. reentered the house, she saw Webb dragging Brittany towards the

      safe in the bedroom. Brittany was still alive at the time, but she later died from

      the gunshot wound at the hospital. B.J. ran out of the house again and back to


      Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018   Page 4 of 21
       the Expedition where Webb eventually joined her and got into the passenger

       seat. Moore, Webb, and B.J. all drove off and headed to Dixon’s to drop off

       heroin and pick up money that she owed. Outside Dixon’s, Moore pulled B.J.

       aside and threatened her and her children’s lives if she were to tell anyone about

       what happened to Brittany. Moore also wiped down Brittany’s phone, handed

       it to B.J., and told her to get rid of it. B.J. drove down the street and threw

       Brittany’s phone in the woods before returning to Dixon’s.

[9]    B.J., Moore, and Webb left Dixon’s soon after and headed back to

       Indianapolis. They dropped off the Expedition at Moore’s apartment in Beech

       Grove and then dropped off Webb at his apartment. At this point, B.J. and

       Moore were driving around in the Cadillac dropping off more heroin, and

       Moore “acted like nothing had just happened . . . he made the comment that

       that’s how you take out competition. It was like a joke. Her life didn’t mean

       anything.” Id. at 207. Moore eventually dropped B.J. off at her house.


[10]   The next day, B.J. was parked outside of a gas station when police surrounded

       her vehicle. Officers had discovered the previous night that B.J. may have been

       involved in Brittany’s murder. Officers searched B.J. and found heroin and

       meth on her from the night before. They took B.J. to the police station and

       questioned her about what happened the previous evening. B.J. implicated

       Moore and then led officers to Jones’s house where they found and arrested

       Moore.




       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018   Page 5 of 21
[11]   On August 30, 2016, Moore was charged with felony murder, Level 1 felony

       burglary,1 and Level 2 felony robbery resulting in serious bodily injury. While

       incarcerated and awaiting trial, Moore passed several notes to B.J. in effort to

       get her to change her story. A five-day jury trial commenced on April 3, 2017.

       And on April 7, the jury found Moore guilty as charged.


[12]   At Moore’s sentencing hearing on May 8, 2017, the trial court merged Moore’s

       robbery conviction with his felony murder conviction. The court then sentenced

       Moore to sixty-five years for felony murder and twelve years for Level 4 felony

       burglary to run consecutively for an aggregate seventy-seven-year sentence.


[13]   Moore now appeals.


                                        I. Admission of Evidence at Trial

[14]   Moore first argues that the trial court abused its discretion when it admitted

       certain evidence at trial. We review challenges to admission of evidence at trial

       for prejudicial abuse of the trial court’s discretion. Williams v. State, 43 N.E.3d

       578, 581 (Ind. 2015). A trial court abuses its discretion by ruling in a way

       clearly against the logic and effect of the facts and circumstances before it, or by

       misinterpreting the law. Id. In reviewing whether an abuse of discretion was

       prejudicial, we assess the probable impact of the improperly admitted evidence

       on the jury in light of the properly admitted evidence. Id. If the conviction is

       supported by independent, properly admitted evidence of guilt such that there is



       1
           This charge was later reduced to Level 4 felony burglary. See Tr. Vol. 6, pp. 171, 179.


       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018           Page 6 of 21
       little likelihood the improperly admitted evidence contributed to the verdict, the

       error is harmless. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).


[15]   Specifically, Moore contends that the trial court erred when it admitted: (1) a

       video and two pictures of Moore and B.J. holding and shooting the rifle a

       couple weeks prior to the murder; and (2) evidence that Moore assaulted

       Crouch on the day of the murder. We address each in turn.


       A. Video and Photographs of Moore and B.J. Holding the Rifle

[16]   Moore maintains that the video and two photographs were improperly

       admitted at trial because they are not relevant. He asserts that because he was

       convicted under a theory of accomplice liability, “the fact that Moore and B.J.

       fired the weapon two weeks prior does not tend to prove any material element

       of the crimes charged.” Appellant’s Br. at 10–11. 2 The State responds that the

       videos and photographs are relevant because they show Moore and B.J. with

       the exact rifle used to commit the crime just two weeks prior to the murder.

       Appellee’s Br. at 17. We agree with the State.




       2
         We note that the trial court admitted the video and a photograph of Moore helping B.J. hold the rifle over
       an objection on relevancy grounds. However, Moore’s counsel did not object to a photograph of Moore
       holding the rifle. See Tr. Vol. 4, p. 231. Therefore, our review of the admission of the photograph of Moore
       holding the rifle is for fundamental error. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). But because we
       find that the trial court did not abuse its discretion in admitting the video or two photographs, we do not
       reach fundamental error. And to the extent Moore contends that the evidence was erroneously admitted as
       prior bad acts under Evidence Rule 404(b), the objection at trial on the video and the photograph of Moore
       holding the rifle with B.J. was for relevance, and thus we find this argument waived. See Hunter v. State, 72
       N.E.3d 928, 932 (Ind. Ct. App. 2017) (holding that grounds for objection not raised at trial are unavailable on
       appeal), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018               Page 7 of 21
[17]   Our supreme court recently explained:


               Trial judges are called trial judges for a reason. The reason is that
               they conduct trials. Admitting or excluding evidence is what they
               do. That’s why trial judges have discretion in making evidentiary
               decisions. This discretion means that, in many cases, trial judges
               have options. They can admit or exclude evidence, and we won’t
               meddle with that decision on appeal. There are good reasons for
               this. Our instincts are less practiced than those of the trial bench
               and our sense for the rhythms of a trial less sure. And trial courts
               are far better at weighing evidence and assessing witness
               credibility. In sum, our vantage point—in a far corner of the
               upper deck—does not provide as clear a view.


       Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017) (citations and quotations omitted).

       While we provide trial courts a high level of deference, evidence must still be

       relevant in order to be properly admitted at trial. Id. And evidence is relevant if

       it has “any tendency” to prove or disprove a consequential fact. Id. (quoting

       Escamilla v. Shiel Sexton Co. Inc., 73 N.E.3d 663, 668 (Ind. 2017)). This liberal

       standard for relevancy sets a low bar, and a trial court enjoys wide discretion

       when determining if the bar is cleared. Snow, 77 N.E.3d at 177.


[18]   Under the accomplice liability statute, a person “who knowingly or

       intentionally aids, induces, or causes another person to commit an offense

       commits that offense.” Ind. Code § 35-41-2-4. Moore notes that he “was

       convicted of Felony Murder based on accomplice liability.” Appellant’s Br. at

       10. Therefore, it is reasonable for a factfinder to conclude that any piece of

       evidence that could tie Moore or other accomplices to the murder weapon

       would be relevant to the underlying murder. The video and two photographs of

       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018   Page 8 of 21
       Moore helping B.J. hold the rifle, and Moore holding the rifle just two weeks

       prior to the murder, are relevant to show access to the weapon Webb used to

       kill Brittany. We acknowledge that relevancy determinations can often “be

       resolved either way,” Snow, 77 N.E.3d at 177, and we do not find that the trial

       court abused its discretion here when it admitted the video and two

       photographs.


       B. Moore’s Assault on Crouch the Night of the Murder

[19]   Moore also argues that the evidence of his assault on Crouch should not have

       been admitted at trial because it “was presented solely to inflame the jury by

       showing Moore as having a violent character.” Appellant’s Br. at 13. But

       Moore’s counsel never objected to any of the testimony regarding Moore’s

       assault on Crouch. See Tr. Vol. 4, pp. 172–74; Tr. Vol. 5, p. 149. And our

       supreme court has explained, “The failure to make a contemporaneous

       objection to the admission of evidence at trial, so as to provide the trial court an

       opportunity to make a final ruling on the matter in the context in which the

       evidence is introduced, results in waiver of the error on appeal.” Brown v. State,

       783 N.E.2d 1121, 1125 (Ind. 2003). Thus, because Moore failed to object

       contemporaneously to the testimony during trial of his assault on Crouch, he

       has waived his right to appellate review on this issue.3




       3
        Even if the trial court erred in admitting the video, two photographs, and evidence of Moore’s assault on
       Crouch, it is all harmless. It is well settled that “[n]o error in the admission of evidence is ground for setting
       aside a conviction unless such erroneous admission appears inconsistent with substantial justice or affects the

       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018                  Page 9 of 21
                                       II. Sufficiency of the Evidence

[20]   Moore next contends that the evidence is insufficient to sustain his convictions.

       When reviewing a claim of insufficient evidence to sustain a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016). It is the fact-finder’s

       role, not ours, to assess witness credibility and weigh the evidence to determine

       whether it is sufficient to support a conviction. Id. We will affirm the conviction

       unless no reasonable fact-finder could have found the elements of the crime

       proven beyond a reasonable doubt. Id. It is therefore not necessary that the

       evidence overcome every reasonable hypothesis of innocence; rather, the

       evidence is sufficient if an inference may reasonably be drawn from it to support

       the verdict. Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007).


[21]   Indiana Code section 35-42-1-1(2) provides that a person who “kills another

       human being while committing or attempting to commit . . . robbery . . .”

       commits felony murder. And under Indiana Code section 35-43-2-1, “[a] person

       who breaks and enters the building or structure of another person, with intent to

       commit a felony or theft in it, commits burglary . . .,” which is elevated to a

       Level 1 felony if “the building or structure is a dwelling” and “it results in




       substantial rights of the parties.” Wickizer v. State, 626 N.E.2d 795, 800 (Ind. 1993). Moore has made no
       showing that the admission of evidence here affected his substantial rights. Moreover, the jury heard
       substantial testimony from B.J. about Moore’s involvement in Brittany’s murder. We cannot say that based
       on the facts and circumstances before us, there is a substantial likelihood that the challenged evidence
       substantially swayed the jury’s verdict. Cf. Thompson v. State, 690 N.E.2d 224, 229–230 (Ind. 1997) (finding
       the error was not harmless when the State introduced and continuously referenced during trial evidence of a
       different murder by the defendant).

       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018             Page 10 of 21
       serious bodily injury to any person other than the defendant.” I.C. § 35-43-2-

       1(4).4 A dwelling is defined as “a building, structure, or other enclosed space,

       permanent or temporary, movable or fixed, that is a person’s home or place of

       lodging.” Ind. Code § 35-31.5-2-107.


[22]   It is well settled that “a person is subject to conviction for felony murder based

       on accomplice liability for the underlying offense.” Luna v. State, 758 N.E.2d

       515, 517 (Ind. 2001). And burglary can similarly be based under a theory of

       accomplice liability. Chappell v. State, 966 N.E.2d 124, 130 (Ind. Ct. App. 2012),

       trans. denied. Thus, the State was required to prove that Moore “knowingly or

       intentionally aid[ed], induce[d], or cause[d] [Webb] to commit” felony murder

       and burglary. I.C. § 35-41-2-4. Moore contends “that the State did not present

       sufficient evidence that Moore aided, induced, or caused Webb to rob and

       shoot [Brittany].” Appellant’s Br. at 15 (emphasis removed).


[23]   On appeal, we consider several factors to determine whether Moore acted as an

       accomplice, including: “(1) presence at the scene of the crime; (2)

       companionship with another engaged in a crime; (3) failure to oppose the

       commission of the crime; and (4) the course of conduct before, during, and after

       the occurrence of the crime.” Wieland v. State, 736 N.E.2d 1198, 1202 (Ind.

       2000).




       4
         Although the charge was eventually reduced to Level 4 felony burglary, the State was required to prove the
       elements of Level 1 felony burglary at the time of trial.

       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018            Page 11 of 21
[24]   Moore alleges that he was merely a bystander at the scene of the crime. We

       disagree. In fact, the evidence introduced at trial does not remotely support

       Moore’s assertion. Prior to leaving Crouch’s home and heading to Brittany’s,

       Moore obtained the rifle and told B.J., “We going to do what we talked about.”

       Tr. Vol. 4, p. 174. Moore had previously told B.J. on several occasions “that if

       Brittany didn’t buy dope from [them] that he was going to rob her over and

       over again[,] so she couldn’t buy her own product from someone else.” Id. at

       176. And this is what B.J. believed Moore meant when he said that they were

       going to Brittany’s to do what they had previously discussed. Id. at 177.


[25]   At Brittany’s, Moore pulled his Cadillac into a parking lot directly adjacent to

       Brittany’s home while B.J. and Webb approached the backdoor and eventually

       went inside. Thus, while Moore himself was not inside Brittany’s apartment, he

       was present at the scene of the crime and for the duration of the offense. Cf.

       Ward v. State, 567 N.E.2d 85, 86 (Ind. 1991) (holding there was insufficient

       evidence to establish accomplice liability where defendant left after dropping off

       those who committed the crime).


[26]   After Webb shot Brittany, and B.J. came running out to Moore’s vehicle,

       Moore told her to “get her f[******] ass back in the house and help [Webb] get

       the stuff.” Tr. Vol. 4, p. 194. Moore was well aware of what had taken place

       inside Brittany’s home, and he actively directed B.J. to go back inside and help

       Webb complete the crime. Therefore, Moore displayed companionship with

       both Webb and B.J. on the night of and during the commission of the crime,

       and he did nothing to oppose it from taking place—rather, he encouraged it.

       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018   Page 12 of 21
[27]   After Moore, Webb, and B.J. left Brittany’s and drove to Dixon’s house nearby,

       Moore wiped down Brittany’s phone and directed B.J. to dispose of it. At

       Dixon’s, Moore also threatened B.J. and her children if she told anyone about

       what happened. And back in Indianapolis later that night, Moore concealed the

       murder weapon under a blanket, and made a comment to B.J., “that that’s how

       you take out competition.” Id. at 207.


[28]   From this evidence, a reasonable trier of fact could have determined beyond a

       reasonable doubt that Moore was guilty based on accomplice liability of the

       felony murder of Brittany and the burglary of her home. Moore’s arguments to

       the contrary are nothing more than a request for us to reweigh the evidence

       before the jury, which we cannot and will not do.


                                    III. Double Jeopardy Concerns

[29]   Moore next argues that his conviction for felony murder based on robbery and

       his conviction for burglary violate Indiana’s prohibition against double jeopardy

       under the actual-evidence test. Article 1, Section 14 of the Indiana Constitution

       provides, “No person shall be put in jeopardy twice for the same offense.” We

       review double jeopardy claims de novo on appeal. Sloan v. State, 947 N.E.2d

       917, 920 (Ind. 2011). And we analyze alleged violations of Indiana’s Double

       Jeopardy Clause pursuant to our supreme court's opinion in Richardson v. State,

       717 N.E.2d 32 (Ind. 1999). In Richardson, our supreme court held that:


               [T]wo or more offenses are the “same offense” in violation of
               Article I, Section 14 of the Indiana Constitution, if, with respect
               to either the statutory elements of the challenged crimes or the

       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018   Page 13 of 21
                actual evidence used to convict, the essential elements of one
                challenged offense also establish the essential elements of another
                challenged offense.


       717 N.E.2d at 49 (emphasis in original).


[30]   Under the “actual evidence” test, Moore must demonstrate 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 all of the

       essential elements of a second challenged offense. Id. at 53. And this court has

       explained:


                Application of this test requires the court to identify the essential
                elements of each of the challenged crimes and to evaluate the
                evidence from the jury’s perspective[.] Therefore, we consider the
                essential elements of the offenses, the charging information, the
                jury instructions, the evidence, and the arguments of counsel.
                The term reasonable possibility turns on a practical assessment of
                whether the jury may have latched on to exactly the same facts
                for both convictions.


       Bunch v. State, 937 N.E.2d 839, 845–46 (Ind. Ct. App. 2010), trans. denied

       (citations and quotations omitted).

[31]   The instruction provided to the jury for felony murder by robbery required the

       State to prove, under a theory of accomplice liability, that:


           1.   [Moore]
           2.   killed
           3.   Brittany Sater, another human being,
           4.   while committing or attempting to commit robbery which is
                defined as:
       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018   Page 14 of 21
             a. [Moore]
             b. knowingly
             c. took property from Brittany Sater or took property from
                the presence of Brittany Sater
             d. by using or threatening the use of force on Brittany Sater.


Appellant’s App. Vol. 2, p. 163 (emphasis added). And the instruction provided

to the jury for Level 1 felony burglary required the State to prove, under a

theory of accomplice liability, that:


    1. [Moore]
    2. knowingly or intentionally
    3. broke and entered
    4. the building or structure of Brittany Sater
    5. with the intent to commit a felony or theft in it, which is defined as:
          a. knowingly or intentionally
          b. exerting unauthorized control over property of Brittany Sater, another
              person
          c. with intent to deprive Brittany Sater of any part of the property’s
              value or use.
    6. and the offense was committed in a building or structure that was a
       dwelling and the offense resulted in serious bodily injury to Brittany
       Sater, who was a person other than a defendant.


Id. at 164 (emphasis added).5




5
  On the State’s recommendation at sentencing, the trial court amended the Level 1 felony burglary to a
Level 4 felony burglary in order to remove the serious bodily injury requirement, thereby alleviating double
jeopardy concerns. See Tr. Vol. VI, pp. 171, 179.

Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018              Page 15 of 21
[32]   Moore argues that the evidence used to support the robbery portion of the

       felony murder conviction was the same that was used to support the burglary

       conviction. Specifically, he contends that Webb’s use of the gun constituted

       both the threat and use of force for the robbery portion of the felony murder

       conviction, and that the same act satisfied the unauthorized control burglary

       element. Appellant’s Br. at 20; Reply Br. at 7.


[33]   Moore cites to our supreme court’s decision in Bradley v. State, 867 N.E.2d 1282

       (Ind. 2007), to support his position. In that case, the defendant stabbed his wife

       in the back and then followed her into the bathroom where he struck her over

       the head with a hammer. Id. at 1284. On appeal, Bradley argued that there was

       a reasonable probability that the jury used the evidence proving criminal

       confinement to also prove aggravated battery. Our supreme court agreed and

       explained, “From the evidence and instructions, it is reasonable that the jury

       may also have found the [required element of force] satisfied by the evidence of

       [defendant’s wife’s] open head injury inflicted by the defendant with the

       hammer.” Id. at 1285. And because the Bradley court found “there is a

       reasonable probability that the jury used the same evidentiary facts to establish

       the essential elements of both criminal confinement . . . and aggravated battery.

       . . the Double Jeopardy Clause is violated.” Id. However, Bradley is readily

       distinguishable from the case before us.


[34]   Here, to find Moore guilty of felony murder the State was required to prove that

       Brittany died while his accomplice was committing or attempting to commit

       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018   Page 16 of 21
       robbery. As to the charge of felony burglary, the State was required to prove

       that Moore’s accomplice broke or entered Brittany’s home with an intent to

       commit theft, and that act resulted in serious bodily injury to Brittany.

       Therefore, the crime of burglary requires a breaking and entering, which is not

       required for the commission of murder while committing or attempting to

       commit robbery. And a breaking and entering was not required in order for the

       jury to convict Moore of felony murder. Therefore, the offenses of felony

       murder and burglary were each established by the proof of a fact not used to

       establish the other offense.


[35]   Thus, although the evidence proving each offense—Webb’s use of the rifle—

       also proved an element of the second offense, in neither case did the same

       evidentiary facts establish all of the essential elements of both offenses. Cf.

       Bradley, 867 N.E.2d at 1285; see also Spivey v. State, 761 N.E.2d 831, 834 (Ind.

       2002). As a result, Moore has failed to demonstrate a violation of the Indiana

       Double Jeopardy Clause under the Richardson actual evidence test.


                                IV. Appropriateness of the Sentence

[36]   Finally, Moore alleges that his sentence is inappropriate in light of the nature of

       the offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he

       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.” In

       conducting our review, “[w]e do not look to determine if the sentence was


       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018   Page 17 of 21
       appropriate; instead we look to make sure the sentence was not

       inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “[S]entencing

       is principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008).


[37]   Thus, although we have the power to review and revise sentences, the principal

       role of appellate review should be to attempt to “leaven the outliers, and

       identify some guiding principles for trial courts and those charged with

       improvement of the sentencing statutes, but not to achieve a perceived ‘correct’

       result in each case.” Id. at 1225. It is Moore’s burden on appeal to establish that

       his sentence is inappropriate. Grimes v. State, 84 N.E.3d 635, 645 (Ind. Ct. App.

       2017), trans. denied.


[38]   When considering the nature of the offense, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The

       advisory sentence for murder is fifty-five years, with a sentencing range of forty-

       five to sixty-five years. Ind. Code § 35-50-2-3. And the advisory sentence for

       Level 4 felony burglary is six years, with a sentencing range of two to twelve

       years. Ind. Code § 35-50-2-5.5. Thus, Moore was ordered to serve the

       maximum sentence for both convictions.


[39]   “Although the maximum possible sentences are generally most appropriate for

       the worst offenders, this rule is not an invitation to determine whether a worse


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       offender could be imagined, as it is always possible to identify or hypothesize a

       significantly more despicable scenario, regardless of the nature of any particular

       offense and offender.” Kovats v. State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013).

       By stating that maximum sentences are ordinarily appropriate for the “worst

       offenders,” we refer generally to the class of offenses and offenders that warrant

       the maximum punishment, which encompasses a considerable variety of

       offenses and offenders. Id. Accordingly, “[w]e concentrate less on comparing

       the facts of this case to others, whether real or hypothetical, and more on

       focusing on the nature, extent, and depravity of the offense for which the

       defendant is being sentenced, and what it reveals about the defendant’s

       character. Wells v. State, 904 N.E.2d 265, 274 (Ind. Ct. App. 2009), trans. denied

       (citing Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002)).


[40]   Regarding the nature of the offense here, we first find Moore’s statement that

       his “conduct was no more serious than the normal murder,” appalling.

       Appellant’s Br. at 20. Moore was set on robbing Brittany up to and until she

       bought drugs from him. And one of his accomplices shot Brittany in the

       abdomen and dragged her to the safe in her bedroom while she was still alive.

       After learning that Brittany had been shot, Moore directed B.J. to go back

       inside and help Webb finish the job rather than seeking medical assistance.

       Moore then instructed B.J. to get rid of Brittany’s cell phone, he concealed the

       murder weapon, he threatened B.J. and her children if she said anything, and

       he told B.J., “that that’s how you take out competition.” Tr. Vol. 4, p. 207. The




       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018   Page 19 of 21
       nature of this heinous offense and Moore’s participation in it does not support a

       finding that the maximum sentence here was inappropriate.


[41]   Moore’s character also does nothing to convince us that the maximum sentence

       was inappropriate. Moore has a lengthy criminal history including five prior

       felony convictions, two misdemeanor convictions, and a juvenile history that

       includes two adjudications for resisting law enforcement and battery if

       committed by an adult. He has been placed on probation three times and

       petitions to revoke were filed in two of them. Moreover, he was out on pre-trial

       release when he committed the current offense. While Moore was incarcerated

       for the current offense, he attempted to persuade B.J. to change her story, and

       he had five offense reports filed against him for inappropriate conduct.


[42]   Based on the atrocious nature of the offense and Moore’s character, we cannot

       say that the trial court’s decision to impose two maximum sentences here is an

       “outlier” that should be reversed under our constitutional authority to review

       and revise sentences. Caraway v. State, 977 N.E.2d 469, 473 (Ind. Ct. App.

       2012), trans. denied.


                                                 Conclusion
[43]   Based on the facts and circumstances before us, the trial court did not abuse its

       discretion when it admitted during trial a video and two photographs of Moore

       holding the murder weapon a couple weeks prior to Brittany’s murder. Further,

       Moore failed to make a contemporaneous objection at trial to his alleged assault

       on Crouch, and therefore he waived his right to appellate review on the

       Court of Appeals of Indiana | Memorandum Decision 53A04-1706-CR-1269 | May 23, 2018   Page 20 of 21
introduction of that evidence. We also find that there was sufficient evidence to

support Moore’s convictions, there was no error under Indiana’s Double

Jeopardy clause, and Moore’s sentence was not inappropriate. Accordingly, we

affirm.


Bailey, J., and Barnes, J., concur.




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