Opinion
Court of Appeals Case No. 20A-CR-2377
10-22-2021
Connor Ralland KERNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorneys for Appellant: James H. Voyles, Jr., Jennifer Lukemeyer, Tyler D. Helmond, Voyles Vaiana Lukemeyer Baldwin & Webb, Indianapolis, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana
Attorneys for Appellant: James H. Voyles, Jr., Jennifer Lukemeyer, Tyler D. Helmond, Voyles Vaiana Lukemeyer Baldwin & Webb, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana
Mathias, Judge. [1] About one month shy of his eighteenth birthday, Connor Kerner murdered Thomas Grill (Thomas) and Molley Lanham (Molley), placed their bodies in Molley's car, set the car on fire in a remote location, attempted to cover up the crime, and took steps to permanently dispose of the charred remains. Ultimately, Kerner was convicted of two counts of murder, two counts of attempted robbery, and one count of arson. And the trial court imposed a 179-year aggregate sentence.
[2] On appeal, Kerner raises several issues for review, which we restate as the following four:
I. Whether the trial court abused its discretion in admitting certain evidence at trial;
II. Whether the State presented sufficient evidence to support his convictions for attempted robbery;
III. Whether his convictions for murder and attempted robbery violate the prohibition against double jeopardy; and
IV. Whether his sentence is inappropriate in light of the nature of his offenses and his character.
[3] Finding a double jeopardy violation flowing from his two convictions for attempted robbery, we vacate the conviction on Count VI. We affirm in all other aspects.
Facts and Procedural History
[4] Around 6:00 p.m. on Sunday, February 24, 2019, Thomas and Molley arrived at Thomas's brother's apartment in Schererville, Indiana. The couple was returning from Denver, Colorado, and they had with them a large quantity of liquid tetrahydrocannabinol (THC) cartridges. Thomas and Kerner had previous drug dealings, and they planned to meet that evening to settle a $15,000 debt Kerner owed. To settle the debt, Kerner "was supposed to give [Thomas] 37 pounds of marijuana" in exchange for 1,000 THC cartridges. Tr. Vol. III, p. 205. That night, Thomas took the cartridges and Molley drove the couple in her black Honda Civic to meet Kerner at his grandparents’ home in Hebron, Indiana. Id. at 204–05. Kerner's grandparents were in New Mexico at the time. But because Kerner "had nothing for [Thomas]," id. at 214, they decided to meet the following day.
Molley went with Thomas and drove because his driver's license was suspended at the time. See Conf. App. Vol. II, pp. 30, 237.
[5] The next day, Monday, February 25, Kerner left his high school—where he was a senior—around 10:15 a.m. with another student, John Silva, and Kerner drove the two of them to his grandparents’ home. Meanwhile, Molley and Thomas left for the same location, with plans to "be back by 1:00 p.m." Id. at 205. At 11:38 a.m., Thomas text messaged his brother "that he was eight minutes away." Id. at 207.
[6] Though it is not entirely clear what happened after Thomas and Molley arrived at Kerner's grandparents’ home that day, the evidence favorable to the jury's verdict reveals the following circumstances and sequence of events. On arrival, Molley stayed in the vehicle while Thomas went inside to meet with Kerner. Despite their arrangement to settle Kerner's debt, Thomas and Kerner planned to rob one another. Silva was inside the home, apparently armed with Kerner's grandfather's 9mm handgun—but outside the presence of Thomas and Kerner. And Kerner was armed with a Glock 43 handgun owned by his mother.
[7] At approximately 11:57 a.m., either inside the garage or at its interior entryway, Kerner fired six shots at Thomas, striking him at least once. Thomas fell to the ground, and Kerner told him to "[g]et the fuck up." Ex. Vol. XVII, State's Ex. 490. Thomas responded, "I don't have it." Id. Then, because Kerner "ran out of bullets" and the "motherfucker wouldn't die," Kerner grabbed a nearby wrench and beat Thomas to death. Tr. Vol. IV, p. 5. Kerner then walked to the driveway where Molley sat inside the parked vehicle. He instructed her to exit the car and follow him into the garage. There, Kerner showed her Thomas's lifeless body and said, "This is what I'm going to do if you tell anyone what I did. This is going to be you." Id. at 5–6. Molley pleaded with him to let her go, and he initially agreed. But when she turned to leave, Kerner "shot her in the head and killed her." Id. at 6; see also Tr. Vol. V, pp. 137–38; Tr. Vol. VI, p. 42.
[8] Kerner's immediate priority was to return to his home in Valparaiso—about thirty minutes from his grandparents’ home—so that he could drive his mother, Roxann, to the airport for a two-day business trip. Silva collected several items in a bag, and he and Kerner left around 12:30 p.m. During the next several hours, Kerner drove Roxann to the airport, returned to his grandparents’ home, got his haircut, had dinner with his girlfriend, Holly Letnich, and her family, and spent time with Holly at his house.
Kerner's parents divorced when he was three years old. He had a good relationship with his father, who still lived in the area, but Kerner lived with Roxann. Conf. App. Vol. III, pp. 176–77; Tr. Vol. VI, pp. 243–44. Though Roxann owned the home, we often refer to it as Kerner's home to avoid confusion.
[9] At Kerner's house that evening, Holly could "tell that something had been bothering" him, and so she asked what was wrong. Tr. Vol. III, p. 244. Kerner eventually admitted that "he had done something really bad." Id. He elaborated that, "around noon" at his grandparents’ house, "he had killed someone and that he had killed an innocent girl." Id. at 244–45; Tr. Vol. IV, p. 34. Kerner identified the deceased "as Thomas Grill and Molley Lanham"—individuals that Holly did not know. Tr. Vol. III, p. 245. Kerner then informed Holly that "he was going to go back after [she] had left and clean some things up." Id. Upon hearing Kerner's confession, Holly "didn't believe him"; she left around midnight "unsure that it was real" and "slightly afraid." Id. at 245–46.
[10] After Holly left, Kerner drove to a local Walmart and purchased several items, including bottles of fire-starter fluid, two propane tanks, packs of towels, rubber cleaning gloves, a paint brush, wall spackle, and various cleaning supplies. From there, Kerner went to his grandparents’ house, where he spent the next several hours cleaning the crime scene, putting Thomas's and Molley's bodies into the Honda Civic, driving the vehicle into a wooded area about two miles away, setting the vehicle on fire, and walking back to his grandparents’ house.
[11] The following day, Tuesday, February 26, Kerner did not go to school. When Roxann chastised him via text message about the unexcused absence, he responded, "I understand but you don't know about last night and that's what matters. Say no more [and] I'll explain when you get home." Ex. Vol. XV at 90. Roxann asked if she could call Kerner to which he replied, "Absolutely not. Can't talk about it." Id. at 91. Later that morning, Kerner went to a local hardware store, where he purchased spray paint, muriatic acid, and an adhesive remover. He then drove to his grandparents’ house and continued his attempt to remove all evidence of the previous day's events. Kerner left around 2:30 p.m., about ninety minutes before his grandparents returned home from their trip.
[12] Upon arriving home, Kerner's grandfather, Gerald Dye, realized that his 9mm handgun, which he had left "in the garage in its case," was missing. Tr. Vol. V, p. 204. Because he and Kerner had previously used the firearm together, Gerald called his grandson "to see if he had [the] 9mm." Id. at 231. When Kerner confirmed he had the gun, Gerald went to pick it up. Kerner told his grandfather that he had planned to "do some target shooting." Id. Gerald, however, found this explanation "[u]nusual," as Kerner had never shot the firearm by himself. Id. at 198; Tr. Vol. VI, p. 7.
[13] Meanwhile, Thomas's and Molley's families learned that the two were missing and took steps to locate them. Thomas's mother, Patricia Grill, discovered that the couple had planned to meet Kerner the previous day. So, Patricia traveled with two of her sons and one of Molley's sisters to the Valparaiso Police Department, where they "tried to talk to a detective." Tr. Vol. III, p. 177. They "also drove and looked for Thomas and Molley throughout" the surrounding county. Id.
Molley's mother and stepfather were on vacation in Florida at the time. Tr. Vol. III, p. 196.
[14] After having no success, Patricia located Roxann's Facebook profile and sent her the following message: "My son Thomas and his girlfriend Molley were supposed to meet your son Connor Monday at 12:00 p.m. They haven't been seen since. Wondering if Connor knows anything [ ] that could help us. Please and thank you we are desperate." Ex. Vol. XV at 99. Roxann forwarded the message to Kerner and asked, "Who is Thomas??" Id. Kerner explained to his mom, through an encrypted messaging system, that he was supposed to meet Thomas for a drug deal, but that Thomas "said he was going to Illinois first instead and that was the last [Kerner] heard from him." Id. at 103. Later that night, Holly "screen-shotted" a missing person's report from Instagram and sent it to Kerner, asking, "What is this?" Tr. Vol. III, p. 249. Kerner responded, "Jesus." Id.
[15] The next morning, Wednesday, February 27, Kerner met with Silva and informed him that "[e]veryone thinks [Thomas] went missing in ... Illinois." Ex. Vol. XVII, State's Ex. 489. Silva handed Kerner the bag of items that he had removed from the crime scene and told Kerner, "I know I'm not tripping, because I know and you know I didn't pull the trigger. I didn't shoot ‘em or nothing. I didn't do none of that. I just helped you clean it." Id. Kerner responded, "Yeah." Id. And the two parted ways.
[16] Also that morning, after learning of Thomas's and Kerner's planned meet-up, a police officer investigating the missing person's report called Kerner. He told the officer the same story he had given Roxann the previous night: "[Thomas] had told me that instead of coming at 11:30, he was, like, hey, I got to run out to Illinois real quick, so I will be back in like six hours." Ex. Vol. XIII at 50. Kerner also relayed this version of events to Patricia when she contacted him later that day. That afternoon and evening, Kerner purchased additional spray paint and muriatic acid, and he picked up Roxann from the airport.
[17] Kerner spent most of the next day, Thursday, February 28, with Holly. At lunch, Holly attempted to elicit "more information from what he had told [her] on Monday." Tr. Vol. IV, p. 2. Recognizing that Kerner "was reluctant to tell [her] anything," she instead wondered aloud what would happen if someone found out and asked, "What if I said something?" Id. at 3. He replied, "Well, you know how I am, I would kill your family and I would make you watch it and then I would kill you after." Id. Holly did not respond.
[18] After lunch, they planned to visit Kerner's grandparents. Holly remained with Kerner that day because she "was scared for [her] family and [her] safety." Id. at 46. While driving to his grandparents’ home, Kerner revealed additional details about Monday's events, including what he had done with Thomas's and Molley's bodies. Kerner told Holly that he "put their bodies in the back of Molley's car" and drove "to a place ... in the woods a couple of miles away from ... his grandparents’ house" where he used "propane tanks and Tiki fluid" and "lit the car on fire." Id. at 6. Then, when Kerner and Holly were "about two miles away" from Kerner's grandparents’ house, Kerner pointed out one of the vehicle's windows and said, "This is where I took them after I killed them." Id. at 7.
[19] Upon arriving, Kerner and Holly walked into the garage. Kerner removed from his backpack "a white bottle of acid and start[ed] pouring it on the floor where the drainage hole is and start[ed] scrubbing it with a brush." Id. at 9. He instructed Holly to go inside and tell his grandparents he "had misplaced his phone in the car and that he would be in shortly." Id. Kerner joined everyone inside "[a]bout five minutes later." Id. at 10.
[20] Back at Kerner's home later that evening, he again threatened Holly that he would kill her if she told anyone about what happened. When Holly left, Kerner contacted his friend, Elliot Husiar, to see "if [he] was available to hang out and talk." Tr. Vol. VII, p. 241. Kerner drove to Elliot's apartment and told him "that he had ... recently had a drug deal with a kid" at his grandparents’ house "and he had to shoot [the] kid." Id. at 243–44; see also Tr. Vol. VIII, pp. 5–6, 8, 10. Kerner explained that he had planned to rob "the kid" of money, but he learned that "the kid" was going to rob him of marijuana. Tr. Vol. VIII, p. 9. He further revealed that "the kid was not dead after he shot him so he finished the job with his bare hands." Tr. Vol. VII, p. 244. Like Holly's initial reaction, Elliot "didn't believe that what [Kerner] had told [him] was real." Id. at 247.
[21] The following morning, Friday, March 1, Holly divulged to her mother "what [Kerner] had told [her] throughout the week." Tr. Vol. IV, p. 14. They decided to wait until Holly's father got home from work to go to the police. In the meantime, Holly and her mother drove to the area near Kerner's grandparents’ home to "get the coordinates of where [Kerner] had told [Holly] that he put the bodies so that" she could later give the location to law enforcement. Id. at 15. Around the same time, Kerner visited a local equipment-rental store "looking for a trailer to move a vehicle." Tr. Vol. VII, p. 18. But, because Kerner was not eighteen years old, the store's manager could not rent him the trailer. So, Kerner returned about two hours later with Roxann and together they rented an "auto carrier." Id. at 20. Kerner had previously told Holly that "he was going to rent a U-Haul" and use it to dump the vehicle and the remains "in the Mississippi River." Tr. Vol. IV, p. 23. [22] When Holly's father returned home from work, Holly told him everything. The family then drove together to a local police station. That evening, Holly informed law enforcement that Kerner "had murdered" Thomas and Molley and indicated "where they could find them." Id. at 21. While Holly was at the police station, Kerner continued with his plan to permanently dispose of the burned bodies and vehicle. Around 6:00 p.m., noticing the auto trailer was in the backyard, Roxann text messaged Kerner, "The trailer is here???" Ex. Vol. XV at 121. Kerner, who at that time was driving with two friends to a local Menards, responded, "I'll be back," and instructed, "Don't text me about anything." Id. Kerner asked his friends whether they had "heard about the missing people." Tr. Vol. VII, p. 164. Both friends said no. Inside the store, Kerner grabbed "a tarp and tarp tape." Id. at 61–62. Then, while waiting in the checkout line, one of Kerner's friends jokingly asked, "what are you going to do, wrap them all up?" Id. at 165. Kerner told his friend to "[s]hut the fuck up." Id.
[23] At some point the next morning, Saturday, March 2, law enforcement, utilizing the information Holly provided, discovered the "burnt-out" Honda Civic with Thomas's and Molley's "skeletal remains" inside in a wooded area about two miles from Kerner's grandparents’ home. Tr. Vol. IV, pp. 147–49; Tr. Vol. V, p. 184. Officers also recovered two propane-style cylinders and two aerosol-type canisters from inside the vehicle. Kerner was arrested that day.
[24] After Kerner's arrest, officers obtained and executed search warrants at both his grandparents’ house and his house. Inside Kerner's grandparents’ garage, officers found bullets and bullet fragments that subsequent testing revealed matched Roxann's Glock 43 handgun. And, inside the garage and the house, officers observed several blood stains that subsequent testing revealed to be Thomas's. At Kerner's home, officers recovered the Glock 43 handgun from his bedroom nightstand. Testing later confirmed the presence of Thomas's and Kerner's DNA on the firearm.
[25] On March 5, law enforcement obtained a search warrant for Kerner's iPhone and passcode and executed the warrant the following day. When Kerner received the warrant, he volunteered the device's passcode. Later that week, law enforcement was called to Roxann's property. There, a detective found, near a fort-like structure, a large tarp and a backpack containing several THC cartridges, tarp tape, and cleaning supplies. When Roxann told Kerner about the backpack's discovery during a phone call, she remarked, "I don't think what was in [the backpack] was good." Ex. Vol. XV at 176. Kerner replied, "No, probably not." Id. Ten days later, during a second interview with police, Silva provided law enforcement with two voice recordings from his iPhone: the first, from February 25, capturing the shooting of Thomas; and the second, from February 27, capturing Silva's and Kerner's in-person conversation.
[26] Over the next few months, law enforcement recovered additional evidence linking Kerner to the murders. In April 2019, Kerner's neighbor notified law enforcement of a bag he discovered in a hole near his property line. Subsequent testing on items recovered from the bag confirmed the presence of Thomas's blood and DNA, Kerner's DNA, and Silva's DNA. Then, in June 2020, one of Thomas's iPhones was found about forty "feet from the road" in a "wooded area" located between the burn site and Kerner's grandparents’ home Tr. Vol. III, p. 206; Tr. Vol. VIII, p. 15; Tr. Vol. IX, pp. 113–14. [27] The State ultimately charged Kerner with two counts of murder, two counts of felony murder, two counts of Level 2 felony attempted robbery, one count of Level 4 felony arson, and one count of Level 6 felony intimidation. After several pretrial motions and hearings, Kerner's eleven-day jury trial began on October 6, 2020.
[28] During trial, over forty witnesses testified and nearly 800 exhibits were entered into evidence. Kerner objected, in relevant part, to the admission of the audio recordings from Silva's iPhone. And, on the sixth day of trial, Kerner moved to suppress the evidence obtained from his iPhone. The court overruled the objection and denied the motion. The jury found Kerner guilty of both counts of murder, both counts of felony murder, both counts of felony attempted robbery, and felony arson. At Kerner's subsequent sentencing hearing, the trial court merged the two murder convictions with the felony murder convictions and entered judgment accordingly. Then, after considering the evidence and hearing testimony from several of Thomas's and Molley's family members, the court imposed a 179-year aggregate sentence.
[29] Kerner now appeals.
Discussion and Decision
[30] Kerner argues that (1) the trial court committed reversible error in admitting certain evidence at trial; (2) the State failed to present sufficient evidence to support his attempted robbery convictions; (3) his murder and attempted robbery convictions violate the prohibition against double jeopardy; and (4) his sentence is inappropriate. We address each argument in turn.
I. The trial court did not err in admitting the evidence obtained from Kerner's iPhone or the audio recordings from Silva's iPhone.
[31] Kerner challenges the trial court's admission, over objection, of the contents of his iPhone and the two voice-memo recordings from Silva's iPhone. In reviewing his challenges, we note that trial courts have broad discretion in ruling on the admissibility of evidence, and we review evidentiary rulings for an abuse of that discretion. Shoda v. State , 132 N.E.3d 454, 460 (Ind. Ct. App. 2019). An abuse of discretion occurs if the court's decision clearly contravenes the logic and effect of the facts and circumstances before it, or if the court misinterprets the law. Id. When, however, admissibility implicates a constitutional issue, we review the court's decision de novo. Carpenter v. State , 18 N.E.3d 998, 1001 (Ind. 2014). We address Kerner's evidentiary challenges in turn, beginning with the trial court's admission of evidence obtained from his iPhone.
A. Evidence from Kerner's iPhone
[32] Two days after Kerner's arrest, law enforcement executed a search warrant for Kerner's iPhone that required him to provide the passcode to unlock the device. A detective gave Kerner the warrant, and he voluntarily gave the detective the passcode. About nineteen months later, on the sixth day of trial, Kerner moved to suppress the evidence seized from his iPhone. Specifically, he argued that the State violated his Fifth Amendment right against self-incrimination when it compelled him to provide the device's passcode. Kerner relies on Seo v. State , 148 N.E.3d 952, 957–58 (Ind. 2020), where our supreme court recently held that the constitutional privilege against self-incrimination may be implicated when the State compels an individual to surrender an unlocked smartphone. Kerner argues that in light of Seo , the court improperly admitted "evidence obtained from ... illegal access ... to [his] cell phone." Appellant's Br. at 23. He is incorrect.
On appeal, Kerner argues that law enforcement violated his "Article 1, Section 11 rights against self-incrimination." Appellant's Br. at 18; see also id. at 20. Article 1, Section 11 of the Indiana Constitution, however, protects Hoosiers from unreasonable searches or seizures. Ind. Const. Art. 1, § 11. Article 1, Section 14 is the constitutional provision prohibiting compelled self-incrimination. Ind. Const. Art. 1, § 14. Yet, even if we treated Kerner's mistake as a scrivener's error, he has waived any argument under Article 1, Section 14 for failure to make an argument grounded in the state constitution. See, e.g. , Allen v. State , 686 N.E.2d 760, 769 n.3 (Ind. 1997).
[33] To claim the Fifth Amendment's protection against compelled self-incrimination, an individual must timely invoke the right. Minnesota v. Murphy , 465 U.S. 420, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). Indeed, voluntary compliance generally does not qualify as "compelled within the meaning of the Fifth Amendment." Id. Here, Kerner acknowledged that he voluntarily gave law enforcement the passcode to his iPhone when a detective executed the search warrant. Tr. Vol. VI, pp. 105, 112; see also Conf. App. Vol. II, p. 244. And Kerner did not raise a Fifth Amendment challenge to the disclosure until the sixth day of trial—more than nineteen months after he provided access without objection.
The privilege against self-incrimination is self-executing in three situations, see McKathan v. United States , 969 F.3d 1213, 1224 (11th Cir. 2020), but Kerner does not allege, and we find no evidence indicating, that any of those situations are applicable here.
[34] Simply put, because Kerner voluntarily gave his passcode to law enforcement instead of timely asserting his Fifth Amendment privilege, Kerner's disclosure was not a compelled incrimination. See Murphy , 465 U.S. at 440, 104 S.Ct. 1136 ; cf. Seo , 148 N.E.3d at 954 (recognizing that Seo consistently refused to provide her passcode once law enforcement had the device in their possession). The trial court therefore did not err in admitting evidence seized from the search of Kerner's iPhone.
Even if we were to conclude that the trial court erred in admitting this evidence, the error is harmless beyond a reasonable doubt because the relevant evidence obtained from Kerner's iPhone—inculpatory messages and information from the Apple Health application—is insignificant in view of the other properly presented evidence establishing his guilt. See Zanders v. State , 118 N.E.3d 736, 741 (Ind. 2019). That properly presented evidence includes the following: Holly's and Elliot's testimony, detailing Kerner's confessions; cellphone-mapping evidence compiled from records obtained from service providers identifying the locations of Kerner's, Silva's, Thomas's, and Molley's cellphones at relevant times; a text message Thomas sent to his brother; various items of physical evidence obtained from Kerner's grandparents’ garage and home, Kerner's home, Kerner's property, and the adjacent property; surveillance footage, receipts, and testimony revealing Kerner purchased items consistent with the burning of the vehicle, the clean-up at the crime scene, and the plan to permanently dispose of the vehicle and remains. See Tr. Vol. III, pp. 207, 244–45; Tr. Vol. IV, pp. 3, 5–9, 22–23, 34, 51–52, 71, 160–61; Tr. Vol. V, pp. 137–38, 208–09, 213, 217, 219; Tr. Vol. VI, p. 97; Tr. Vol. VII, pp. 18–20; 58–59, 61–62, 129, 135–37, 150, 164–65, 173, 178, 243–45; Tr. Vol. VIII, pp. 5–6, 8, 10, 42–54, 68–70, 162–66, 178–80, 183–87, 189–93, 200, 215–22, 224–30, 233–35, 237–38; Tr. Vol. IX, pp. 47, 56–57, 98–99, 110, 113–14, 118, 144–45, 151; Ex. Vol. XV at 146, 148; Ex. Vol. XVI at 103–45.
[35] We now address Kerner's second evidentiary challenge: whether the trial court abused its discretion in admitting two audio recordings from Silva's iPhone.
B. Audio-recordings from Silva's iPhone
[36] About three weeks after the murders, Silva—the individual who accompanied Kerner to his grandparents’ home that day—provided law enforcement with two voice-memo recordings from his iPhone. One recording is from the day of the murders, February 25, and allegedly captures the shooting of Thomas and its immediate aftermath. The other recording is from two days later, February 27, and allegedly captures an incriminating, in-person conversation between Kerner and Silva. Both before and during trial, a forensic scientist who examined the recordings testified that each "had been changed from the original," but he could not identify what had been altered. Tr. Vol. II, pp. 103, 110–11; see also Tr. Vol. VII, pp. 90, 93, 95–96. The trial court denied Kerner's pretrial motion to suppress the recordings, reasoning that his objections went "to the weight of the evidence provided by the recordings and not [their] admissibility." Conf. App. Vol. II, p. 189. Then, during trial, the court admitted the two recordings into evidence over Kerner's objection. Kerner argues that "[n]either should have been admitted into evidence" because "they were undisputedly altered." Appellant's Br. at 19. We disagree.
[37] For the recordings to be admissible, they needed to be authenticated. See Hunter v. State , 72 N.E.3d 928, 933 (Ind. Ct. App. 2017), trans. denied. Absolute proof of authenticity, however, was not required. See, e.g. , Wisdom v. State , 162 N.E.3d 489, 494 (Ind. Ct. App. 2020), trans. denied. Rather, the State needed to produce evidence establishing a reasonable probability that the recordings were what the State claimed them to be. Ind. Evidence Rule 901(a) ; Pavlovich v. State , 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied. And once the reasonable probability showing is made, any concern with the recordings’ veracity goes to evidentiary weight, not admissibility. Fry v. State , 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. Evidence that can be used to make this showing includes "distinctive characteristics of the item" and an individual's "opinion identifying a person's voice ... based on hearing the voice at any time under circumstances that connect it with the alleged speaker." Evid. R. 901(a)(4), (5).
[38] While we acknowledge the forensic scientist testified that each recording had been altered, his testimony establishes that the alterations were likely insignificant. For example, he explained that: (1) each recording began at its designated start time; (2) there was no evidence specifying what was altered; (3) the alterations could have been caused by simply pausing the recordings in real-time or by later removing portions from the beginning or end of the recordings; (4) the alterations may have been "as little as one second"; (5) neither recording included an "abnormalit[y]," such as somebody recording over the audio "in the middle of somebody talking"; and (6) neither recording was altered using an external program. Tr. Vol. II, pp. 112–13; Tr. Vol. VII, pp. 90–93, 96, 102–03. Additionally, the State presented significant evidence supporting the authenticity of each recording.
[39] For the February 25 recording, the evidence establishing authenticity includes corroborating cellphone records and testimony, voice-identification testimony, and distinctive characteristics. The recording began around 11:45 a.m. and lasts approximately fifteen minutes. Ex. Vol. XVII, State's Ex. 490. Cellphone records establish that during this time the phones belonging to Molley, Thomas, Kerner, and Silva, were located in the area encompassing Kerner's grandparents’ home. Ex. Vol. XVI at 113–16. About twelve minutes into the recording, six gunshots are fired in quick succession. Ex. Vol. XVII, State's Ex. 490. One of the neighbors heard gunshots coming from the direction of Kerner's grandparents’ home around the same time. See Tr. Vol. V, pp. 137–38. After the shooting, a male voice in the recording says, "Get the fuck up bitch," to which a second male voice responds in an apparently agonized voice, "I don't have it." Ex. Vol. XVII, State's Ex. 490. This series of events aligns with Holly's testimony that Kerner said he shot Thomas at his grandparents’ house "around noon." Tr. Vol. III, p. 245; Tr. Vol. IV, p. 5. Soon after the shooting, a male voice is heard saying the name "John"—Silva's first name—and a different male voice is heard saying the name "Connor"—Kerner's first name. Ex. Vol. XVII, State's Ex. 490. At trial, a detective testified that the two voices were Kerner's and Silva's respectively. Tr. Vol. VII, p. 117. The detective reached this conclusion after listening to "[h]undreds if not ... thousands" of confirmed phone recordings of Kerner and "[o]ver a thousand" confirmed phone recordings of Silva. Id. Then, a little over thirteen minutes into the recording, a phone is heard ringing in the background. Ex. Vol. XVII, State's Ex. 490. Phone records for Kerner's grandparents’ landline reveal an unanswered call at 12:00 p.m. that day. Ex. Vol. XV at 172. All of this evidence establishes a reasonable probability that, despite unidentified, minor alterations, the February 25 recording is what the State claimed it to be—audio capturing Thomas's shooting in Kerner's grandparents’ garage.
[40] As for the February 27 recording, the evidence establishing authenticity includes corroborating cellphone records, voice-identification testimony, and corroborating physical evidence. The recording began around 9:44 a.m. and lasts for about two-and-one-half minutes. Ex. Vol. XVII, State's Ex. 489. Cellphone records confirmed that Kerner's and Silva's phones were in the same area around that time. Ex. Vol. XVI at 133. And the detective mentioned above testified that the voices in this recording were Kerner's and Silva's. Tr. Vol. VII, pp. 119–20. In the recording, Kerner tells Silva that "[e]veryone thinks [Thomas] went missing in New Lennox, Illinois," Ex. Vol. XVII, State's Ex. 489, which is consistent with the story Kerner relayed to a police officer that morning and to Roxann the previous night, Tr. Vol. III, pp. 220–21; Ex. Vol. XIII at 50; Ex. Vol. XV at 103–05. Then, Silva hands Kerner a bag that Silva says includes "[t]he knife, the gun, all our clothes, shoes [ ], my sweatshirt, your sweatshirts, the towels, everything." Ex. Vol. XVII, State's Ex. 489. Law enforcement would later recover Roxann's Glock 43 handgun from Kerner's bedroom nightstand. Tr. Vol. VIII, pp. 69–70; Tr. Vol. IX, p. 110. And officers also eventually found a blood-stained knife as well as several blood-stained articles of clothing, towels, and shoes—items that contained Kerner's, Silva's, and Thomas's DNA—inside a bag that was concealed in a hole on property adjacent to Kerner's home. Tr. Vol. VIII, pp. 209–11, 219–22, 224–30, 233–35, 237, 238. All of this evidence establishes a reasonable probability that, despite an unidentified alteration, the February 27 recording is what the State claimed it to be—audio capturing an incriminating conversation between Kerner and Silva.
[41] In short, the unidentified alterations in the recordings were insignificant and the State presented substantial evidence indicating that the two voice-memo recordings were authentic. The trial court, therefore, did not err in admitting the recordings into evidence. We now turn to Kerner's claim that the State presented insufficient evidence to support two of his convictions.
Even if we were to conclude that the trial court erred in admitting the audio recordings, the errors were harmless because the State presented overwhelming, independent evidence of Kerner's guilt. See supra note 6; Williams v. State , 43 N.E.3d 578, 581 (Ind. 2015).
II. The evidence is sufficient to sustain Kerner's conviction for attempted robbery causing serious bodily injury to Thomas.
[42] Kerner next challenges the sufficiency of evidence supporting his conviction for Level 2 felony attempted robbery resulting in serious bodily injury to Thomas. When reviewing a claim of insufficient evidence, we consider only the evidence and the reasonable inferences favorable to the judgment, and we neither reweigh the evidence nor judge witness credibility. Davis v. State , 13 N.E.3d 939, 947 (Ind. Ct. App. 2014), trans. denied. "We will affirm the judgment if it is supported by substantial evidence of probative value, even if there is some conflict in that evidence." Gibson v. State , 51 N.E.3d 204, 210 (Ind. 2016) (cleaned up).
Kerner also argues that the evidence was insufficient to support his similar conviction for Molley (Count VI) because her "death did not result from the attempted robbery." Appellant's Br. at 30. But we need not address this argument, because, for reasons explained below, we vacate Kerner's conviction on Count VI on double jeopardy grounds.
[43] To convict Kerner of the offense, the State needed to prove that Kerner knowingly or intentionally engaged in a substantial step toward taking property from Thomas by force, which resulted in serious bodily injury to Thomas. Ind. Code §§ 35-42-5-1(a), -41-5-1; Conf. App. Vol. II, pp. 129–30. Kerner argues that the State's evidence is insufficient because it failed to prove "[t]he ‘takes property from another’ element" beyond a reasonable doubt. Appellant's Br. at 28. We disagree.
[44] Accepting Kerner's argument would require us to improperly reweigh the evidence favorable to the jury's judgment. Elliott testified that, three days after the murder, Kerner came to his apartment and told him that he "recently had a drug deal with a kid and he had to shoot a kid" in his grandparents’ garage. Tr. Vol. VII, pp. 243–45. Kerner explained that "his plan was to go and rob" Thomas of money. Tr. Vol. VIII, pp. 9–10. But that plan turned deadly because, according to Kerner, Thomas was also "there to rob him." Tr. Vol. VII, p. 243; see also Tr. Vol. VIII, pp. 6–7. From this testimony alone, the jury could reasonably infer that Kerner performed a substantial step toward taking property from Thomas by force.
Though Kerner did not disclose Thomas's name to Elliot, the State presented overwhelming evidence from which the jury could reasonably infer that "the kid" referred to Thomas.
[45] Yet, the jury's conclusion is further supported by other evidence. Kerner took Silva with him to his grandparents’ home the day of the murders, and they were both armed when Thomas and Molley arrived. Additionally, as detailed in the previous section, the audio recording of the shooting includes Kerner, after firing six shots, telling Thomas to "get the fuck up," to which Thomas responds, "I don't have it." Ex. Vol. XVII, State's Ex. 490. In short, the State presented sufficient evidence from which the jury could conclude that Kerner engaged in a substantial step toward taking property from Thomas by force.
[46] We now turn to Kerner's claim that his convictions for murder and attempted robbery violate the prohibition against double jeopardy. III. Kerner's convictions implicate double jeopardy concerns.
[47] Kerner contends that his convictions and sentences for two counts of murder and two counts of attempted robbery violate the prohibition against double jeopardy. Applying our supreme court's analysis in Wadle v. State , 151 N.E.3d 227 (Ind. 2020), we disagree. However, we sua sponte conclude that his two attempted-robbery convictions are prohibited under Powell v. State , 151 N.E.3d 256 (Ind. 2020). We review each legal issue de novo. Wadle , 151 N.E.3d at 237.
[48] The prohibition against double jeopardy embodies "a substantive bar to multiple convictions or punishments for the ‘same offense’ in a single" prosecution. Id. at 239. Alleged substantive double jeopardy violations, as we address here, "come in two principal varieties: (1) when a single criminal act or transaction violates a single statute but harms multiple victims, and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims." Id. at 247. Kerner's claim implicates the latter; our sua sponte analysis implicates the former. We address each in turn.
A. Kerner's convictions for murder and attempted robbery
[49] Kerner argues that, under Wadle , his convictions for murder and attempted robbery constitute a substantive double jeopardy violation. Though the proper analytical framework for addressing this claim is potentially a three-step process, id. at 248–50, only the first two steps are necessary here.
[50] The first step requires us to determine whether "either statute clearly permits multiple punishment ... expressly or by unmistakable implication." Id. at 253. As noted above, Kerner's double jeopardy challenge centers on his convictions for murder—under section 35-42-1-1(1) —and his convictions for attempted robbery—under sections 35-42-5-1(a)(1) & 35-41-5-1. The murder statute provides that "[a] person who ... knowingly or intentionally kills another human being ... commits murder, a felony." I.C. § 35-42-1-1(1). Under the robbery statute, "a person who knowingly or intentionally takes property from another person or from the presence of another person ... by using or threatening the use of force on any person ... commits robbery." I.C. § 35-42-5-1(a)(1). And "[a] person attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime." I.C. § 35-41-5-1. Both the State and Kerner correctly observe that none of these statutes permit multiple punishment either expressly or by unmistakable implication. Appellant's Br. at 32; Appellee's Br. at 47.
Kerner's offenses were elevated to Level 2 felonies because the attempted robbery resulted "in serious bodily injury to any person other than a defendant." I.C. § 35-42-5-1(a). The enhancements do not affect our double jeopardy analysis. See Wadle , 151 N.E.3d at 254 (recognizing that an elevation is neither a separate offense nor a conviction, and thus "double-jeopardy analysis is simply inapposite").
[51] The second step requires us to "apply our included-offense statutes to determine whether the charged offenses are the same," either inherently or as charged. Wadle , 151 N.E.3d at 253. Kerner maintains that "[t]he offense of attempted robbery committed in the course of a completed murder is an included offense." Appellant's Br. at 34. But he is incorrect, as a cursory review of the charging information and the statutory language demonstrates. [52] An offense is "inherently included" if it "may be established by proof of the same material elements or less than all the material elements defining the" other offense or if "the only feature distinguishing the two offenses is that a lesser culpability is required to establish the commission of the lesser offense." Wadle , 151 N.E.3d at 251 n. 30 ; Wright v. State , 658 N.E.2d 563, 566 (Ind. 1995) (cleaned up). In other words, if a comparison of the respective offense statutes shows that the requirements of the lesser included statute— Indiana Code § 35-31.5-2-168 —are met, an inherently included offense exists.
[53] Indiana Code § 35-31.5-2-168 defines an "included offense" as an offense
(1) that "is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;"
(2) that "consists of an attempt to commit the offense charged or an offense otherwise included therein;" or
(3) that "differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission."
I.C. § 35-31.5-2-168.
[54] Kerner's convictions for murder and attempted robbery do not satisfy any of those three subsections. Subsection (1) is not applicable because each offense requires an element the other offense does not; murder requires a killing and attempted robbery requires a substantial step toward taking another's property by force. Subsection (2) is not applicable because neither offense constitutes an attempt to commit the other offense. And subsection (3) is not applicable because the offenses differ in more respects than just the degree of harm or culpability required; as just noted, each offense requires some conduct the other does not. Therefore, one is not inherently included in the other.
[55] If the offenses are not inherently included, we next must determine whether they are included as charged. Wadle , 151 N.E.3d at 253. An offense "may be ... factually included ... if the charging information [for another offense] alleged all of its elements." Larkin v. State , 173 N.E.3d 662, 668 (Ind. 2021).
[56] A review of the second amended information shows that the attempted robbery and murder counts are not included offenses as charged. The murder counts merely alleged Kerner "knowingly or intentionally kill[ed]" Thomas and Molley. App. Vol. II, p. 128. The robbery counts alleged Kerner attempted to take property from Thomas resulting in serious bodily injury to Thomas or to Molley. Id. at 129-30. Neither offense alleged all of the elements of the other and, therefore, are not included as charged.
[57] In short, because neither of the challenged offenses is an included offense of the other "there is no violation of double jeopardy." Wadle , 151 N.E.3d at 248 ; see Jarrett v. State , 160 N.E.3d 526, 533–34 (Ind. Ct. App. 2020), trans. denied ; Diaz v. State , 158 N.E.3d 363, 369–70 (Ind. Ct. App. 2020) ; cf. Hendricks v. State , 162 N.E.3d 1123, 1139 (Ind. Ct. App. 2021) (recognizing that conspiracy to commit robbery could be an included offense of felony murder as charged because the offenses differed "only in the respect that a less serious harm" to the victim was required to establish the conspiracy), trans. denied.
[58] However, the two attempted robbery convictions cannot stand.
B. Kerner's two convictions for attempted robbery
[59] Though not raised by Kerner, we sua sponte conclude that he cannot be twice convicted for the attempted robbery of Thomas even though that offense resulted in serious bodily injury to both Thomas and Molley. We reach this conclusion by applying our supreme court's analysis in Powell , which controls when a single criminal act violates a single statute but results in multiple injuries. 151 N.E.3d at 263.
[60] The analysis under Powell , potentially a two-step process, begins by reviewing the text of the statute to determine the appropriate unit of prosecution. Id. at 264. If the minimum action required to commit a new and independent violation of the statute is clear, "we follow the legislature's guidance and our analysis is complete." Jones v. State , 159 N.E.3d 55, 63 (Ind. Ct. App. 2020) (quoting Powell , 151 N.E.3d at 264 ), trans. denied. Here, because the statutes defining attempted robbery do not contain a distinct unit of prosecution, see I.C. §§ 35-42-5-1(a), -41-5-1, we determine whether the statutory offense is conduct-based or result-based, Powell , 151 N.E.3d at 265.
[61] The Powell court explained,
A conduct -based statute ... consists of an offense defined by certain actions or behavior (e.g. , operating a vehicle) and the presence of an attendant circumstance (e.g. , intoxication) .... A result -based statute, on the other hand, consists of an offense defined by the defendant's actions and the results or consequences of those actions.
Id. at 266. The distinction matters when multiple consequences flow from a single criminal act: conduct-based statutes permit only a single conviction whereas result-based statutes permit multiple convictions. Id.
[62] As noted above, a person who engages in conduct that constitutes a substantial step toward knowingly or intentionally taking property from another person or from the presence of another person by using or threatening the use of force on any person commits Level 5 felony attempted robbery. I.C. §§ 35-42-5-1, -41-5-1. The offense is elevated to a Level 2 felony "if it results in serious bodily injury to any person other than a defendant." Id.
For purposes of our analysis in this section, we refer to the crime of attempted robbery as a single statutory offense. Though, as noted above, the offense technically consists of two statutes, it exists only by reading one statute "in conjunction with" the other. Kee v. State , 438 N.E.2d 993, 994 (Ind. 1982).
[63] Attempted robbery is a conduct-based crime, as its commission is marked by conduct, not results. The crime is complete when the defendant, acting with the requisite culpability, "engages in conduct that constitutes a substantial step toward" committing the robbery, I.C. § 35-41-5-1, regardless of whether that conduct results in taking property from another by force. The fact that a specific consequence—serious bodily injury—can elevate the offense does not change this result. See Powell , 151 N.E.3d at 266 (observing that "multiple consequences do not establish multiple crimes" even though "a specific result or consequence (e.g., death or serious bodily injury) may enhance the penalty imposed") (quotation omitted); see also Jones , 159 N.E.3d at 64 (finding that kidnapping is a conduct-based statute despite enhancements for a specific result).
[64] Although both Thomas and Molley suffered serious bodily injury, there was only one act of attempted robbery. As reflected in the State's charging information, the core of the criminal act was Kerner's attempt to take property from Thomas by using or threatening the use of force on him. Conf. App. Vol. II, pp. 129–30. While serious bodily injury to a second victim can elevate the offense, it cannot form the basis of a separate attempted robbery. Accordingly, Kerner's conviction for attempted armed robbery of Molley must be vacated.
In our view, Level 2 felony attempted robbery is an offense that does not fit neatly within the Powell analysis; because, under that analysis, this crime could also be viewed as a results-based offense. In Powell , our supreme court reasoned that the statute defining attempted murder "clearly contemplates a victim (or potential victim) by use of the direct object ‘another human being,’ " which the court found "suggests that attempted murder is a result-based crime." 151 N.E.3d at 267. The same is true for attempted robbery. The statute defining the offense refers to taking property from "another person," which suggests that each victim in an attempted robbery calls for distinct punishment. See id. Yet, even if we found that there were "equally legitimate ways of thinking about the statute's unit of prosecution," Powell ’s next step is not applicable to these circumstances, and thus, the result would be the same. Kerner committed only one attempted robbery. Although that attempted robbery ultimately resulted in serious bodily injury to two people, "multiple consequences do not establish multiple crimes" where, as is the case here, "the consequence serves primarily to enhance the penalty" for the offense. Mathews v. State , 849 N.E.2d 578, 582 (Ind. 2006). Further, the elevation applies if the attempted robbery "results in bodily injury to any person other than the defendant." I.C. § 35-42-5-1 (emphasis added). The use of "any person," suggests that this elevation contemplates increased punishment for "only a single offense" even when the attempted robbery causes "harm to multiple victims." Powell , 151 N.E.3d at 267.
[65] We now turn to Kerner's final claim, that his sentence is inappropriate.
IV. Kerner has not demonstrated that his sentence is inappropriate.
[66] Finally, Kerner argues that his sentence is inappropriate under Indiana Appellate Rule 7(B). Under this rule, we may modify a sentence that we find is "inappropriate in light of the nature of the offense and the character of the offender." App. R. 7(B). Making this determination "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). Sentence modification under Rule 7(B), however, is reserved for "a rare and exceptional case." Livingston v. State , 113 N.E.3d 611, 612 (Ind. 2018) (per curiam).
[67] When conducting this review, we generally defer to the sentence imposed by the trial court. Conley v. State , 972 N.E.2d 864, 876 (Ind. 2012). Our role is to "leaven the outliers," not to achieve what may be perceived as the "correct" result. Id. Thus, deference to the court's sentence will prevail unless the defendant persuades us the sentence is inappropriate by producing compelling evidence portraying in a positive light the nature of the offense—such as showing restraint or a lack of brutality—and the defendant's character—such as showing substantial virtuous traits or persistent examples of positive attributes. Robinson v. State , 91 N.E.3d 574, 577 (Ind. 2018) ; Stephenson v. State , 29 N.E.3d 111, 122 (Ind. 2015).
[68] Before explaining why Kerner has failed to show that his sentence was inappropriate, we first observe that the trial court did not impose the maximum possible sentence. Kerner was convicted of two counts of murder, two counts of Level 2 felony attempted robbery, and one count of Level 4 felony arson. For each murder, Kerner faced either a sentence of life imprisonment without parole or a sentence ranging from forty-five to sixty-five years with an advisory term of fifty-five years. I.C. § 35-50-2-3. For each Level 2 felony, Kerner faced a sentence of ten to thirty years with an advisory term of seventeen-and-one-half years. I.C. § 35-50-2-4.5. And for the Level 4 felony, Kerner faced a sentence of two to twelve years with an advisory term of six years. I.C. § 35-50-2-5.5. Therefore, Kerner faced life imprisonment without parole or a maximum term of 202 years. The court, however, imposed a 179-year aggregate sentence. And, for reasons provided below, Kerner has failed to establish that his less-than-maximum sentence is inappropriate.
As explained in the previous section, we vacate one of Kerner's attempted robbery convictions on double jeopardy grounds which will reduce his sentence by 25 years. However, we address Kerner's 7(B) argument based on the sentence imposed by the trial court. Our analysis is unaffected by the reduction.
[69] In arguing that his sentence is inappropriate, Kerner does not point to any evidence portraying in a positive light the nature of the offenses. Appellant's Br. at 36–38. He has therefore essentially conceded that if we reviewed only the circumstances of his horrific crimes, the sentence is warranted. However, Kerner urges us to revise his sentence primarily because of his juvenile status at the time of the offenses. Indeed, he was seventeen years old—about five weeks shy of his eighteenth birthday—when he killed Thomas and Molley.
The only other "problem" Kerner identifies with his sentence is that it "stemmed from alternative theories of cumulative punishment for overlapping criminal offenses." Appellant's Br. at 36. He maintains that we should "order the convictions for attempted robbery resulting in bodily injury to be served concurrent to the murder convictions." Id. This argument lacks merit for two reasons. First, Kerner does not provide any explanation or reasoning to support his argument that we should use Rule 7(B) "to curb cumulative punishment" here. Id. And second, factors supporting cumulative punishment are present: Kerner committed the offenses against two victims; and each crime of violence punishes distinct conduct. See Serino v. State , 798 N.E.2d 852, 857 (Ind. 2003) ; I.C. § 35-50-1-2(a), (c).
[70] There is no question that "age is a major factor that requires careful consideration" when conducting Rule 7(B) review. Wilson v. State , 157 N.E.3d 1163, 1182 (Ind. 2020). Indeed, caselaw has identified three primary differences between juvenile and adult offenders: (1) juveniles lack maturity; (2) juveniles are more susceptible to negative influences; and (3) juveniles have less developed character. See, e.g. , Brown v. State , 10 N.E.3d 1, 7 (Ind. 2014). At the same time, these differences do not necessarily render lengthy sentences imposed on juveniles inappropriate. See Wilson , 157 N.E.3d at 1182 ("To be sure, lifetime imprisonment may sometimes be appropriate for a juvenile.").
[71] Kerner supports his inappropriate-sentence argument by citing to four opinions from our supreme court in which the court revised the sentences of juveniles convicted of murder: Brown , 10 N.E.3d 1 ; Fuller v. State , 9 N.E.3d 653, 657 (Ind. 2014) ; Taylor v. State , 86 N.E.3d 157 (Ind. 2017) ; Wilson , 157 N.E.3d 1163. However, his reliance on those opinions is misplaced; in each case our supreme court relied on circumstances that are not present here. We highlight three.
[72] First, in Brown , Fuller , and Wilson , the court recognized that the juveniles’ conduct was not particularly heinous—there was no evidence any of the victims were "beaten" or "lingered in pain." Brown , 10 N.E.3d at 5 ; Fuller , 9 N.E.3d at 658 ; Wilson , 157 N.E.3d at 1181–82. Yet, as detailed extensively above, Kerner's conduct was exceedingly heinous, including evidence that Thomas was "beaten" to death with a wrench after he "lingered in pain" from being shot. The trial court opined that the "brutal nature of [Thomas's] killing [was] one of the worst" it had seen. Tr. Vol. X, p. 80. And while the court aptly recognized that the sentence it imposed "may be looked at as a de facto life sentence," the court found that the nature of Kerner's "offenses deserves that." Id. at 82. We agree and conclude that Kerner's conduct in committing the offenses and his actions thereafter—including his abuse of the bodies beyond recognition and attempting to cover up the crimes—support the enhanced sentence. Cf. Conley , 972 N.E.2d at 876–77, 880 (finding a life-without-parole sentence imposed on a juvenile not inappropriate where the seventeen-and-one-half year old defendant murdered his younger brother with his bare hands, disposed of the body, "acted as if nothing was out of the ordinary," and took steps to cover up the crime).
[73] Second, in Brown and Taylor , the court observed that the juveniles’ culpability was diminished due in part to the offenders’ difficult upbringings. Brown , 10 N.E.3d at 6 ; Taylor , 86 N.E.3d at 166 ; see also State v. Stidham , 157 N.E.3d 1185, 1195–96 (Ind. 2020). The sixteen year old in Brown had "been using alcohol and marijuana since the age of ten," 10 N.E.3d at 6 ; and the seventeen year old in Taylor "grew up fatherless" in a neighborhood "with rising gang activity and alcohol and drug abuse," 86 N.E.3d at 166. As for Kerner, the record reveals that the circumstances surrounding his upbringing were quite different.
[74] Kerner "first tried alcohol at the age of seventeen ... but never drank on a regular basis." Conf. App. Vol. III, p. 177. And he "denied the use of all illicit substances besides marijuana," which he used a "few times" each month in the three years preceding the offenses. Id. Kerner reported a "good" childhood, noting that he lived in an area with "little crime" and grew up with close friends and with parents and grandparents who supported him emotionally and financially. Id. at 176–77. Further, at the time of the offenses, Kerner had never been "suspended or expelled from school," and he was taking only three classes because he "was ahead in his studies." Id. at 177; Tr. Vol. VI, p. 188.
While much of the information in this paragraph is found in Kerner's presentence investigation report, it is notable that Kerner does not direct us to any portions of the record in arguing his sentence is inappropriate. See Appellant's Br. at 35–38. We note again, however, that it is the defendant's burden on appeal to persuade this court that the sentence imposed is inappropriate. See, e.g. , Durstock v. State , 113 N.E.3d 1272, 1280 (Ind. Ct. App. 2018), trans. denied.
[75] Finally, in Brown and Wilson , the court recognized that the juvenile offenders had not previously displayed particularly violent behavior. Brown , 10 N.E.3d at 5–6 ; Wilson , 157 N.E.3d at 1182. Kerner, on the other hand, nearly committed murder four months before the current offenses under alarmingly similar circumstances. In October 2018, Kerner owed [REDACTED] $10,000 for fronting a large quantity of marijuana. Kerner told [REDACTED] that he had the money, so [REDACTED] traveled with a friend to Kerner's house where the friend stayed in the car. Inside the house, Kerner stabbed [REDACTED] and informed him that he "did not have the money so he had to kill" him. Tr. Vol. X, p. 26. [REDACTED] was able to flee the residence after telling Kerner that "he wouldn't get away with it because there is someone in his car outside." Conf. App. Vol. II, p. 135. Because he was "in fear for his life," [REDACTED] identified Kerner as the person who stabbed him only after Kerner was in custody for the murders of Thomas and Molley. Tr. Vol. X, pp. 25, 30.
[76] In short, the circumstances here are vastly different than in the cases where our supreme court has found lengthy sentences imposed on juvenile offenders to be inappropriate. In addition, the trial court's enhanced sentence is further supported by other evidence in the record that reflects poorly on Kerner's character.
[77] In posttrial jail phone calls with Roxann, Kerner disparaged witnesses, Thomas, and both victim's families. For example, Kerner told his mother that "Holly can go get fucked," called her "a bitch," and indicated that "[s]he'll get what's coming." Ex. Vol. XVII, State's Sentencing Ex. 6. In that same call, Kerner also called Thomas a "slime ball" and opined, "You don't just get put in a car and burned for no reason." Id. In another call, when Roxann informed Kerner that he would soon be in a courtroom with Thomas's and Molley's parents, Kerner responded "fuck em" and stated, "I don't give a fuck." Ex. Vol. XVII, State's Sentencing Ex. 7.
[78] Kerner's complete lack of remorse and deflection of responsibility reflected in the phone calls supports the victim's family members’ characterization of Kerner's conduct during trial. Molley's mother, for example, found Kerner's behavior at trial "repulsive," noting that his "smirks and childish antics" as well as "joking and laughing in the courtroom" left her "completely speechless." Tr. Vol. X, pp. 52–53. She described Kerner as "the worst kind of evil" and believed that rehabilitation was "not an option." Id. at 53. Molley's sister and Thomas's mother made similar observations and remarks. See id. at 46–48, 58.
[79] In sum, the fact that Kerner committed these horrific offenses when he was seventeen years old does not render his sentence inappropriate. Kerner has not produced any evidence that portrays the nature of the offenses or his character in positive light. He therefore has not met his burden to establish that his less-than-maximum sentence is inappropriate.
Conclusion
[80] The trial court did not err in admitting evidence obtained from Kerner's and Silva's iPhones during trial. The State produced sufficient evidence to support Kerner's conviction for Level 2 felony attempted robbery on Count V. Kerner's convictions for murder and attempted robbery as to Thomas do not violate the prohibition against double jeopardy. And Kerner has not demonstrated that his sentence is inappropriate.
[81] However, because we conclude Kerner's two attempted-robbery convictions violate double jeopardy, we remand with instructions for the trial court to vacate Kerner's conviction and twenty-five-year sentence on Count VI and issue an amended sentencing order, consistent with the opinion, for an aggregate sentence of 154 years.
[82] Affirmed in part, reversed in part, and remanded with instructions.
Tavitas, J., and Weissmann, J., concur.