MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D), this                                     May 01 2018, 10:22 am
Memorandum Decision shall not be regarded as                                         CLERK
precedent or cited before any court except for the                               Indiana Supreme Court
                                                                                    Court of Appeals
purpose of establishing the defense of res judicata,                                  and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Michael R. Fisher                                      Curtis T. Hill, Jr.
Marion County Public                                   Attorney General of Indiana
Defender Agency                                        Caroline G. Templeton
Indianapolis, Indiana                                  Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Justin Kasten,                                             May 1, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1711-CR-2654
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Hon. Grant W. Hawkins,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           49G05-1505-MR-18447



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018               Page 1 of 8
                                          Case Summary
[1]   In February of 2015, Justin Kasten, who was in need of money, formulated a

      plan with two confederates—all three armed with handguns—to rob a

      marijuana dealer. When the dealer arrived, one of Kasten’s accomplices

      pointed a gun at the dealer, and gunfire soon erupted. Although there is no

      evidence that Kasten fired a shot, the dealer and his companion were both

      killed in the shootout. Kasten was convicted of and sentenced for two counts of

      felony murder, receiving an aggregate sentence of ninety-five years of

      incarceration. Kasten contends that his sentence is inappropriately harsh.

      Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On the evening of February 17, 2015, Kasten, Sean Wright, a male named

      Caleb, and William Haskett were in Haskett’s house at 1044 South Harlan

      Street in Indianapolis. Kasten mentioned that he needed money, and Wright

      suggested that they could make money quickly by stealing from a person he

      knew to be a marijuana dealer. The plan was for Wright to point a gun at the

      person with the marijuana, take the drugs, and hand the drugs to Kasten. To

      this end, the quartet apparently arranged for Daniel White and Devin Calloway

      to come to the area in the belief that the duo would be in possession of

      marijuana.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018   Page 2 of 8
[3]   When the vehicle with White and Calloway arrived, Wright climbed into the

      rear seat behind White, Kasten stood outside the vehicle near Wright, and

      Caleb walked around to the passenger side. Wright, Caleb, and Kasten were all

      armed with firearms, and Wright pointed a handgun at White. Kasten was

      standing outside the vehicle, waiting to be given the marijuana, when the

      shooting started.


[4]   While Kasten suffered a gunshot wound to his neck and arm, White and

      Calloway fared much worse, both dying. Calloway was shot three times,

      including a shot in the back that perforated his heart and one to the head, either

      of which would have been fatal. White was shot five times, including shots (1)

      in his left eye that went through his brain, (2) to his neck that damaged his heart

      before the bullet lodged itself in his spinal column, and (3) in the back that went

      through his heart and left lung, any one of which would have been fatal.


[5]   On May 28, 2015, the State charged Kasten with two counts of felony murder

      and one count of Level 3 felony attempted robbery. On September 27, 2017,

      following a three-day trial, a jury found Kasten guilty as charged. On October

      20, 2017, the trial court held a sentencing hearing, merged the robbery

      conviction into one of the felony murder convictions, and imposed consecutive

      sentences of forty-seven and one-half years for each felony murder conviction,

      for an aggregate sentence of ninety-five years of incarceration.


                                Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018   Page 3 of 8
[6]   Kasten contends that his ninety-five-year sentence imposed following his

      conviction of two counts of felony murder in inappropriately harsh. We “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.” Ind. Appellate Rule

      7(B). “Although appellate review of sentences must give due consideration to

      the trial court’s sentence because of the special expertise of the trial bench in

      making sentencing decisions, Appellate Rule 7(B) is an authorization to revise

      sentences when certain broad conditions are satisfied.” Shouse v. State, 849

      N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation

      marks omitted). “[W]hether we regard a sentence as appropriate at the end of

      the day turns on our sense of the culpability of the defendant, the severity of the

      crime, the damage done to others, and myriad other factors that come to light

      in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In

      addition to the “due consideration” we are required to give to the trial court’s

      sentencing decision, “we understand and recognize the unique perspective a

      trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d

      867, 873 (Ind. Ct. App. 2007).


[7]   As for the nature of Kasten’s offenses, they arose out of a remarkably ill-

      conceived scheme to rob a known drug dealer at gunpoint, which not

      surprisingly resulted in gunfire and two persons losing their lives. As the trial

      court stated, “the most important factor … is there are two deaths.” Tr. Vol. III

      p. 499. Indiana courts have long recognized that consecutive sentences are


      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018   Page 4 of 8
      appropriate when more than one victim is harmed. See, e.g., Myers v. State, 27

      N.E.3d 1069, 1082 (Ind. 2015); Cardwell, 895 N.E.2d at 1225 (“Whether the

      counts involve one or multiple victims is highly relevant to impose consecutive

      sentences”). The Indiana Supreme Court has noted that consecutive sentences

      seem “necessary to vindicate the fact that there were separate harms and

      separate acts against more than one person.” Serino v. State, 798 N.E.2d 852,

      857 (Ind. 2003). The nature of Kasten’s offenses, and the devastating effect

      they had, supports the imposition of a lengthy sentence.


[8]   Kasten’s decision to participate in the attempted robbery demonstrates his poor

      character. Needing money to raise a child, rather than work, Kasten agreed to

      participate in a dangerous crime without hesitation. Kasten demonstrated

      remorse for his participation only to the extent that he told police that he should

      have sold his gun instead. There is no indication that Kasten needed to be

      coerced into participating in the robbery or tried to talk the others out of it.

      Instead, the evidence indicates that Kasten willingly did his part and was ready

      to take the marijuana out of the car window, had things gone as planned.


[9]   Kasten’s poor character is further demonstrated by his criminal behavior and

      supports the appropriateness of his sentence. Kasten’s juvenile record, while

      not particularly serious, nonetheless reflects poorly on his character. See Reis v.

      State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017) (holding that even a minor

      criminal record reflects poorly on a defendant’s character). Kasten had a

      battery charge dismissed following completion of supervised release and a true

      finding on a criminal trespass charge. In addition to his charged misconduct,


      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018   Page 5 of 8
       Kasten regularly used marijuana prior to his arrest. Furthermore, Kasten’s

       possession of a firearm during the attempted robbery was illegal. See Ind. Code

       § 35-47-2-3(g) (a license to carry a handgun shall not be issued to a person under

       18 years of age); Ind. Code § 35-47-2-1(a), -1(e) (carrying a handgun without a

       license is a Class A misdemeanor). Kasten’s prior behavior that is criminal,

       though not charged, is properly considered by this Court. See, e.g., Harlan v.

       State, 971 N.E.2d 163, 170 (Ind. Ct. App. 2012) (“Allegations of prior criminal

       activity need not be reduced to conviction before they may properly be

       considered aggravating circumstances by a sentencing court.”). Kasten’s

       disregard for the law reflects poorly on his character.


[10]   Kasten argues in part that his sentence should be reduced because this was a

       felony murder and that he played a relatively minor role. Regardless of

       whether Kasten was the shooter, he willingly participated in a crime when he

       and his co-conspirators were all armed with handguns. Even if Kasten did not

       expect his confederates to shoot, the crime he agreed to was inherently

       dangerous and posed a substantial risk of injury and death to all involved,

       especially because the intended victim was a known drug dealer. To the extent

       that Kasten deserves consideration for his allegedly minor role in the murders,

       we note that the trial court imposed sentences significantly shorter than the

       advisory sentence for felony murder, which is fifty-five years. Ind. Code § 35-

       50-2-3. Kasten’s mitigated sentence adequately addresses Kasten’s role as an

       accomplice.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018   Page 6 of 8
[11]   Kasten argues that his own injuries during the commission of the crime merit

       consideration in the appropriateness of his sentence. Kasten’s injuries were the

       result of his own conduct and agreement to participate in a particularly

       dangerous crime. Indeed, Kasten’s injury demonstrates the severity of the

       crime and does not merit mitigating consideration. Kasten also argues that

       because he cooperated with the police at one interview he should receive a

       lesser sentence. We note that, in general, cooperation with the police after a

       defendant is apprehended represents a pragmatic decision and is not entitled to

       mitigating weight. Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010).

       That seems to have been the case here, as Kasten emphasized that had he

       played only a minor role in the robbery. Moreover, Kasten’s cooperation with

       the police was short-lived. By the time of trial, Kasten had reverted to his initial

       story about being at Haskett’s house, but not remembering anything else from

       that night. Kasten’s cooperation also did not extend to testifying against

       Wright or Caleb.


[12]   Finally, although we acknowledge Kasten’s youth, that does not render his

       sentence inappropriate in this case. Both the Indiana Supreme Court and the

       United States Supreme Court have recognized a presumption that juveniles are

       less culpable than adults based on developments in psychology and brain

       development. See Brown v. State, 10 N.E.3d 1, 7 (Ind. 2014) (citing Graham v.

       Florida, 560 U.S. 40, 68 (2010)). This presumption is primarily based on the

       notion that there are three main differences between juvenile offenders and

       adult offenders: (1) juveniles lack maturity; (2) juveniles are more susceptible to



       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018   Page 7 of 8
       negative influences; and (3) the character of a juvenile is not as well formed as

       an adult’s. Id. Be that as it may, those considerations have not led the Indiana

       Supreme Court to conclude that lengthy sentences for juveniles convicted of

       serious crimes are necessarily inappropriate. See, e.g., Taylor, 86 N.E.3d at 166–

       67 (concluding that an aggregate sentence of eighty years was appropriate for a

       seventeen-year old who was convicted of murder and conspiracy to commit

       murder). At the time of his crimes, Kasten was only two months shy of

       eighteen years old. Being so close to his majority, Kasten’s alleged youth loses

       a significant portion of its potentially mitigating effect. Moreover, there is no

       indication that Kasten had a diminished capacity rendering him less mature

       than others his age. It is also worth noting that Kasten’s age was already taken

       into account by the trial court in reducing each of his sentences below the

       advisory sentence for felony murder. In light of the nature of his offenses and

       his character, Kasten has failed to establish that his sentence is inappropriately

       harsh.


[13]   We affirm the judgment of the trial court.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018   Page 8 of 8
