MEMORANDUM DECISION                                                              FILED
                                                                           09/18/2017, 10:08 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 CLERK
this Memorandum Decision shall not be                                        Indiana Supreme Court
                                                                                Court of Appeals
regarded as precedent or cited before any                                         and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alan K. Wilson                                           Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana

                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jaron D. Johnson,                                        September 18, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A02-1701-CR-169
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Linda Ralu Wolf,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         18C03-1602-F2-2



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-169 | September 18, 2017             Page 1 of 8
                                             Case Summary
[1]   Jaron D. Johnson appeals his conviction and sentence for Level 2 felony

      burglary with a deadly weapon. We affirm.


                                                    Issues
[2]           The issues before us are:


              I.       whether the trial court erred in admitting Johnson’s post-arrest
                       statements to police; and

              II.      whether Johnson’s seventeen-year sentence is inappropriate.

                                                     Facts
[3]   On February 9, 2016, Heidi Cook was in a friend’s home in Muncie and on a

      telephone call with Peggy Meadows when she heard a “big old boom” near the

      front door. Tr. pp. 207-08. Cook asked Meadows, who was her father’s

      girlfriend, to call the police. Cook was pregnant and had two young children in

      the house with her.


[4]   Johnson and an unidentified accomplice had kicked open the front door of the

      house. Johnson wore a bandana over his face, and his accomplice wore a

      mask. The accomplice took Cook’s cell phone and pointed an AR-15 semi-

      automatic rifle at the children and her. Suddenly, Johnson suffered an apparent

      seizure and collapsed. The accomplice demanded that Cook retrieve a safe

      from a bedroom and kept his rifle trained on the children. Cook complied.

      Once he had the safe, the accomplice removed a handgun from the unconscious

      Johnson’s pocket and fled the scene.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-169 | September 18, 2017   Page 2 of 8
[5]   Cook ran outside with the children and encountered her father and Meadows,

      who had rushed to the scene. Meadows telephoned the police. Cook and her

      father went into the house to retrieve her coat and shoes. Her father

      approached Johnson’s body and checked his condition. Johnson’s eyes were

      open.


[6]   Muncie Police Department officers arrived at the scene, ordered Johnson from

      the house, and took his statement. Before the interview, Johnson signed an

      acknowledgment and waiver of his Miranda rights. Johnson denied having an

      accomplice.


[7]   On February 15, 2016, the State charged Johnson with Level 2 felony burglary

      with a deadly weapon. At the outset of trial, he moved to suppress his

      statement to police, asserting it violated his right against self-incrimination. At

      Johnson’s jury trial, which commenced on November 28, 2016, the trial court

      redacted a portion of his statement, including the following responses: “I don’t

      want to incriminate myself”; and “that sounds a little incriminating.” Id. at 45.

      The trial court declined to redact Johnson’s response, “I don’t want to answer

      that.” Id. at 45-46. The State moved to admit Johnson’s redacted statement,

      and the trial court admitted it into evidence over his objection.


[8]   The jury found Johnson guilty as charged. In imposing sentence, the trial court

      cited the following as aggravating circumstances: (1) Johnson committed the

      offense while released on bond; (2) his history of juvenile delinquency; and (3)

      his pattern of prior juvenile adjudications involving handguns–carrying a


      Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-169 | September 18, 2017   Page 3 of 8
       handgun without a license and dangerous possession of a firearm. The trial

       court found the following mitigating circumstances: (1) Johnson was only

       eighteen years of age; (2) the instant offense was his first felony; (3) his

       substantial family support regarding his rehabilitation; (4) he had spiraled into

       drug and alcohol abuse after his mother’s death when he was sixteen years of

       age; and (5) his favorable employment record as an inmate. The trial court

       sentenced Johnson to a term of seventeen years, ordering fourteen years

       executed and three years suspended to probation. Johnson now appeals.


                                                   Analysis
                                 I. Admission of Post-Arrest Statements

[9]    Johnson argues that the trial court abused its discretion in admitting evidence of

       his post-arrest silence. Specifically, he argues that the trial court improperly

       allowed the jury to hear post-arrest statements in which he expressly declined to

       answer questions for fear of self-incrimination. The admission or exclusion of

       evidence is a matter left to the sound discretion of the trial court. Terry v. State,

       857 N.E.2d 396, 409 (Ind. Ct. App. 2006), trans. denied.


[10]   Johnson’s claim is based on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976).

       In Doyle, the United States Supreme Court held that “under the Fourteenth

       Amendment a prosecutor may not use the silence of a defendant who has been

       arrested” and given Miranda warnings “to impeach the defendant.” Trice v.

       State, 766 N.E.2d 1180, 1182 (Ind. 2002) (citing Doyle, 426 U.S. at 619, 96 S.Ct.

       at 2245). “Miranda warnings inform a person of his right to remain silent and

       Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-169 | September 18, 2017   Page 4 of 8
       assure him, at least implicitly, that his silence will not be used against him.” Id.

       at 1183 (quoting Anderson v. Charles, 447 U.S. 404, 407-08, 100 S. Ct. 2180, 2182

       (1980)). Doyle is not limited solely to the use for impeachment purposes of a

       defendant’s silence. Teague v. State, 891 N.E.2d 1121, 1125 (Ind. 2008) (citing

       Wainwright v. Greenfield, 474 U.S. 284, 291-92, 106 S. Ct. 634, 639 (1986)), cert.

       denied. “Rather, it also applies to the use of a defendant’s silence as affirmative

       proof in the State’s case in chief.” Id.

[11]   Even if the State used Johnson’s post-arrest silence in violation of Doyle, such

       error was harmless. In the harmless error context, our supreme court has held

       that, in analyzing whether a Doyle violation is harmless beyond a reasonable

       doubt, we examine five factors: (1) the use to which the prosecution puts the

       post-arrest silence; (2) who elected to pursue the line of questioning; (3) the

       quantum of other evidence indicative of guilt; (4) the intensity and frequency of

       the reference; and (5) the availability to the trial court of an opportunity to grant

       a motion for mistrial or give a curative instruction. Sobolewski v. State, 889

       N.E.2d 849, 857 (Ind. Ct. App. 2008), trans. denied.


[12]   Here, the trial court permitted Johnson’s statement to be introduced only after it

       was redacted to omit references to his refusal to answer police questions for fear

       of self-incrimination. See Tr. p. 45 (“I don’t want to incriminate myself”; and

       “that sounds a little incriminating.”). Therefore, the only references that the

       jury heard to Johnson’s post-arrest silence were statements in which he

       expressed his general unwillingness to answer posed questions, (i.e., “I don’t


       Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-169 | September 18, 2017   Page 5 of 8
       want to answer that.”). These unredacted, brief, and general references to

       Johnson’s post-arrest silence pale in comparison to the ample evidence of his

       guilt.


[13]   During the jury trial, the State presented evidence that Johnson and his

       accomplice forcibly entered another person’s dwelling intending to committing

       a crime inside; Johnson was armed and was wearing a bandana to obscure his

       face; and his masked and armed accomplice pointed a semi-automatic rifle at a

       pregnant woman and two young children and demanded the residents’ safe.

       But for Johnson’s apparent seizure and resulting unconsciousness, he too would

       have absconded with the safe, instead of being left behind at the scene,

       apprehended, and prosecuted.


[14]   Given the overwhelming evidence of Johnson’s guilt, we conclude that it is

       clear beyond a reasonable doubt that error, if any, in the use of his post-arrest

       silence did not contribute to his conviction and was, therefore, harmless. See

       Sobolewski, 889 N.E.2d at 857.


                                                  II. Sentence

[15]   Johnson argues that his seventeen-year sentence is inappropriate under Indiana

       Appellate Rule 7(B) in light of his character and the nature of the offense.

       Although Rule 7(B) does not require us to be extremely deferential to a trial

       court’s sentencing decision, we still must give due consideration to the decision.

       Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also

       acknowledge the unique perspective that a trial court brings to its sentencing


       Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-169 | September 18, 2017   Page 6 of 8
       decisions. Id. A defendant bears the burden of persuading the appellate court

       that his or her sentence is inappropriate. Id.


[16]   The principal role of Rule 7(B) 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.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately turns on the culpability of the defendant, the severity of the crime,

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

       given case. Id. at 1224. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[17]   Regarding the nature of the offense, Johnson—armed with a deadly weapon

       and wearing a bandana to hide his face—and another man kicked in the front

       door of another person’s residence. Inside, Johnson’s accomplice pointed a

       rifle at Cook, who was pregnant, and two minor children. Johnson’s

       involvement in the crime was halted by a fortuitous seizure and his resulting

       unconsciousness. His accomplice fled with the residents’ safe and Johnson’s

       handgun, leaving Johnson behind.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-169 | September 18, 2017   Page 7 of 8
[18]   As for Johnson’s character, he has a record of prior juvenile adjudications, each

       involving a deadly weapon. He committed the instant offense while he was

       released on bond. Inexplicably, he downplays the crippling effect of his

       involuntary seizure and emphasizes his resulting restraint – arguing that “his

       offense could have been much worse”; that “[he] himself did not brandish a

       weapon, and did not point it at anyone”; that none of the occupants of the

       house was injured during the burglary; and that he did not resist law

       enforcement on being apprehended. Appellant’s Br. at 18. In light of

       Johnson’s questionable character and the troubling circumstances of the

       burglary, his seventeen-year sentence—with three years ordered suspended to

       probation—is not inappropriate.


                                                 Conclusion
[19]   We conclude that error, if any, from the trial court’s admission of Johnson’s

       post-arrest statements amounted to harmless error. Johnson’s seventeen-year

       sentence is not inappropriate. We affirm.


[20]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1701-CR-169 | September 18, 2017   Page 8 of 8
