SMITH v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] A jury found Caden Smith guilty of murder for the killing of Joseph Thomas, as well as guilty of murder and felony murder for the killing of Michael James and Abdullah Mubarak. The jury also found Smith guilty of robbing James and Mubarak, possessing a machine gun, dangerous possession of a firearm, possessing methamphetamine, and possessing marijuana. The trial court sentenced Smith, who was almost seventeen years old when he committed the crimes, to 189 years in the Department of Correction.

[2] On appeal, Smith argues that his convictions for possessing marijuana and robbing Mubarak are not supported by sufficient evidence; that the trial court committed reversible error in admitting and excluding certain evidence; that his convictions for possessing a machine gun and dangerous possession of a firearm violate substantive double jeopardy principles; that the sentencing order incorrectly describes his robbery convictions; that the trial court erred in merging his felony murder convictions with his related murder convictions instead of vacating them; and that his sentence is inappropriate in light of the nature of the offenses and his character.

[3] We affirm Smith's convictions for murder, robbery, possession of a machine gun, possession of methamphetamine, and possession of marijuana, as well as his aggregate sentence. We reverse his conviction for dangerous possession of a firearm on double jeopardy grounds and remand with instructions to vacate that conviction. On remand, the trial court must also correct the description of the robbery convictions in its sentencing order and vacate Smith's convictions for felony murder.

Facts and Procedural History

[4] The relevant facts most favorable to the jury's verdicts are as follows. Smith was born in November 2004. His “mother was in prison most of [his] life, and [his] dad wasn't really around[.]” Tr. Vol. 7 at 168. When he was fourteen, Smith accidentally shot himself in the knee while posing for a selfie with a handgun. In October 2021, Smith lived with his maternal grandmother on West Thompson Road on the southwest side of Indianapolis. Smith bought and sold drugs and firearms and facilitated sales of devices known as Glock switches, which convert semiautomatic handguns into fully automatic handguns. He test-fired his firearms in a wooded area (“the woods”) near his home between Bluff Road and the 4400 block of South Meridian Street. At that time, Smith was wanted on multiple juvenile court warrants.

[5] Shortly after 6:00 p.m. on October 10, eighteen-year-old Joseph Thomas went with his mother, Evelyn Nelson, to a gas station convenience store on Meridian Street, where he saw and talked with Smith. Smith had gone to school with him and was “good friends” with Thomas. Id. at 169. This encounter was captured on the store's surveillance camera. State's Ex. 176. After Thomas and Nelson got home, he told her, “Ma, I'm going to chill with Caden for a minute[,]” and left their apartment. Tr. Vol. 4 at 76. Nelson looked outside and saw Thomas get into the rear passenger seat of a car. Id. When the streetlights came on, Nelson called Thomas and asked when he would be home. Thomas told Nelson that he was on his way. When Thomas failed to arrive, Nelson tried calling and texting him and got no response. Sometime between 8:30 and 9:00 p.m., rapid gunshots were heard coming from the woods. The next day, Nelson called the police to report Thomas missing.

[6] Seventeen-year-old Abdullah Mubarak lived on the southwest side of Indianapolis with his mother, Amneh Al Shelebi. Around 8:00 p.m. on October 11, Mubarak told his mother that he was going to pick up some fast food with his twenty-two-year-old friend Michael James in Al Shelebi's car. Smith was “good friends” with James but did not know Mubarak. Tr. Vol. 7 at 169, 170. Al Shelebi expected Mubarak to be home by 9:00 p.m. because he had told her that someone was going to pick up James at that time. Between 9:00 and 9:30 p.m., rapid gunshots again were heard coming from the woods. When Mubarak failed to arrive as expected, Al Shelebi “started texting him” at 9:50 p.m. Tr. Vol. 4 at 170. Her phone indicated that Mubarak did not read her texts and that the location-sharing feature of his phone had been turned off.

[7] On the evening of October 12, Indianapolis Metropolitan Police Department (“IMPD”) Officer Nicholas Stewart was working a part-time security job for a company that was installing power lines in the woods. The company's trailers had been “getting broken into overnight[,]” so Officer Stewart “watched over the equipment for a while.” Id. at 41. The officer walked around the area and saw a trail that went through a field. He followed the trail, saw what appeared to be two “sets of legs that were in the trail,” and called for backup. Id. at 44. IMPD Sergeant Brian Clark arrived, and he and Officer Stewart discovered the bodies of James and Mubarak. Farther down the trail, Sergeant Clark found Thomas's body.

[8] All three victims had died from multiple gunshot wounds. Thomas had been shot five times, including in the head, chest, and abdomen, and he had a glove on his right hand. James had been shot three times in the head, and he had gloves on both hands. Mubarak had been shot nine times, including in the head and the back. The ground near the bodies was littered with numerous 9-millimeter fired cartridge cases stamped with different manufacturers’ marks, as well as several unfired 9-millimeter cartridges.

[9] On October 13, Al Shelebi's car was located in an apartment complex parking lot across Meridian Street from the woods. On the front passenger seat was an Apple iPhone that was later determined to have an Apple ID of MikeJames22@iCloud.com. In the front console cup holder was a firearm magazine with seventeen cartridges.

[10] On October 15, Al Shelebi found a backpack containing James's pay card and temporary license in her garage. The backpack also contained a bag of what appeared to be marijuana; two magazines, one of which was “loaded with unfired cartridges”; and two “fired cartridges[.]” Tr. Vol. 5 at 43. Al Shelebi informed lead investigator IMPD Detective Jose Torres about the backpack.

[11] On October 16, James's mother, Gladys Larson, opened James's iPad and “looked at his Instagram account.” Tr. Vol. 4 at 165. Larson “found communication between” James and another person with a username “like redhead or something to that nature.” Id. Smith has red hair. Tr. Vol. 7 at 248. Larson “noted that there was talk about guns as well as a location was being sent to [James] for him to meet the individual at a particular location.” Tr. Vol. 4 at 165. She then “immediately called” Detective Torres. Id. The detective looked at the conversations on the iPad and saw “a couple of messages referring to a location, a wooded area[,]” as well as a “photo with highlight [of] the location where eventually the bodies were found.” Tr. Vol. 5 at 137.

[12] At some point, Detective Torres spoke with Nelson and obtained the convenience store's surveillance video of Smith and Thomas's encounter on October 10. Police interviews with other relatives and friends of the victims led to the surveillance of Smith's home. A search warrant for the home was obtained and executed on October 27. Both Smith and his grandmother were home at the time of the search, and Smith was taken into custody. Inside Smith's bedroom, police found the following items: a backpack containing marijuana, methamphetamine pills, and a baggie with unfired cartridges bearing multiple manufacturers’ marks; a loaded .40-caliber Glock handgun equipped with a Glock switch; a loaded 9-millimeter Polymer 80 handgun (a third-generation Glock clone, also known as a P80); a bulletproof vest; and six cell phones. The cartridges in the baggie and the Polymer 80 bore manufacturers’ marks that matched those on cartridges and cartridge cases found at the murder scene. Smith's DNA was found on both handguns, as well as on a cartridge case found at the murder scene. Police later obtained search warrants for all six cell phones.

[13] In December 2021, the State charged Smith with three counts of murder; three counts of felony murder; three counts of robbery resulting in serious bodily injury, a Level 2 felony; possession of a machine gun, a Level 5 felony; dangerous possession of a firearm, as a Class A misdemeanor; possession of methamphetamine, as a Level 3 felony; and possession of marijuana, as a Class B misdemeanor.

[14] In August 2022, Smith filed a motion to suppress the evidence seized from his home. The trial court granted the motion, and the State appealed. Another panel of this Court reversed the trial court's ruling, finding that the search warrant was supported by probable cause. State v. Smith, No. 22A-CR-2424, 2023 WL 3533380 (Ind. Ct. App. May 18, 2023) (mem.), trans. denied. In June 2024, Smith filed a motion to suppress the evidence recovered from the cell phones. The trial court denied the motion.

[15] A five-day jury trial was held in August 2024. Smith testified and denied that he had murdered and robbed Thomas, James, and Mubarak, but he admitted that he “ran into Joseph Thomas” in the convenience store on October 10. Tr. Vol. 7 at 196. The jury found Smith guilty on all counts except the felony murder and robbery counts relating to Thomas.

[16] At the sentencing hearing, Smith presented neither evidence nor argument. When given an opportunity to make a statement, Smith said, “I'm grateful to go to prison. I'd rather go to prison than get out and end up dead.” Tr. Vol. 8 at 192. The trial court entered judgment of conviction on all counts for which Smith was found guilty, reduced the Level 2 felony robbery convictions to Level 5 felonies, and merged the felony murder convictions with the applicable murder convictions.

[17] In pronouncing Smith's sentence, the trial court found only one mitigating circumstance: Smith's age at the time of the offenses. The court then found the following aggravating circumstances, which “far outweigh[ed] any mitigation that [Smith's] age could provide”: Smith's delinquency history, including a true finding for theft and a true finding for escape from home detention for the theft offense, which the court found as an additional aggravator because it showed Smith's “intention on how [he] would serve a sentence”; Smith committed the instant offenses while “there were outstanding warrants for [his] arrest” for absconding from the sentences that he was “still supposed to be serving”; Smith violated the conditions for his pretrial release in this case within a month by violating a no-contact order and possessing firearms; the “facts and circumstances” of the murders, including evidence of premeditation, luring his victims to their deaths, “leaving the bodies in the cold and the rain[,]” and taking “things off their bodies after the murders were complete”; and the lack of remorse that Smith demonstrated in his text messages for taking the lives of three persons, two of whom he “identified during [his] own testimony as [his] friends.” Tr. Vol. 8 at 198-200. The court then stated, “Because of that -- and I do believe each victim deserves their own sentence.” Id. at 200. The court imposed an aggregate sentence of 189 years in the Department of Correction.

[18] Smith now appeals his convictions and his sentence. Additional facts will be provided as necessary.

Discussion and Decision

Issue One: Sufficiency of Evidence for Possession of Marijuana

[19] Smith first contends that his conviction for possession of marijuana is not supported by sufficient evidence. “Sufficiency-of-the-evidence claims trigger a deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)). “[W]e consider only the evidence and reasonable inferences most favorable to the verdict and will affirm the conviction ‘unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.’ ” Bowens v. State, 24 N.E.3d 426, 427 (Ind. Ct. App. 2014) (quoting Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).

[20] A person is guilty of Class B misdemeanor possession of marijuana if he “knowingly or intentionally possesses (pure or adulterated) marijuana[.]” Ind. Code § 35-48-4-11(a)(1). When Smith committed the crime in October 2021, Indiana Code Section 35-48-1-19(a) defined “marijuana” as “any part of the plant genus Cannabis whether growing or not; the seeds thereof; the resin extracted from any part of the plant, including hashish and hash oil; any compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.”¹ Subsection (b) of the statute stated that the term “does not include” certain substances, including “hemp (as defined by IC 15-15-13-6)[.]” I.C. § 35-48-1-19(b)(6). Hemp is defined as

the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis, for any part of the Cannabis sativa L. plant.

I.C. § 15-15-13-6.

[21] Smith correctly observes that, “[a]s a matter of Indiana law, the difference between legal hemp and illegal marijuana is determined by the percent concentration of THC in a particular substance.” Appellant's Br. at 39 (quoting Fedij v. State, 186 N.E.3d 696, 708 (Ind. Ct. App. 2022)). He argues that we must reverse his conviction for possession of marijuana because the State did not prove that the substance found in the backpack in his bedroom “contained a delta-9 THC concentration percentage of at least 0.3%. No lab report was admitted at trial establishing what, if any, THC was present in the substance. The State only presented testimony of the substance[’]s weight.” Id. at 40.

[22] Smith's argument omits some crucial context. Indianapolis Marion County Crime Lab forensic scientist Amanda Mohaupt was the State's witness for the chemical content of the substances found in Smith's backpack. Before Mohaupt was called to the stand, defense counsel told the deputy prosecutor, “You know, we could ․ stipulate to her qualifications, and just let her say what's what. We're not contesting it.” Tr. Vol. 6 at 77 (emphasis added). The deputy prosecutor asked, “Do you want me to just have her talk about what the drugs are?” Id. Defense counsel replied, “Just do it real quick.” Id. The deputy prosecutor responded, “What do you do? Where do you work? What are they?” Id. at 78. Defense counsel replied, “Yeah.” Id.

[23] The deputy prosecutor asked Mohaupt what she did and where she worked and then asked her if she had tested “vegetation” that was found in Smith's backpack. Id. at 80. Mohaupt stated that she had and that the “vegetation” was “found to be marijuana” weighing over 74 grams. Id. at 80, 87. Because defense counsel stipulated to Mohaupt's identification of the “vegetation,” we affirm Smith's conviction for possession of marijuana. See Coleman v. Atchison, 9 N.E.3d 224, 229 (Ind. Ct. App. 2014) (“A stipulation is binding on both the parties and the trial court, and establishes a particular matter as a fact.”) (citing Clark v. State, 562 N.E.2d 11, 17 (Ind. 1990)).²

Issue Two: Sufficiency of Evidence for Robbery of Mubarak

[24] Smith also argues that his conviction for robbing Mubarak is not supported by sufficient evidence. As relevant here, a person is guilty of Level 5 felony robbery if he knowingly or intentionally takes property from another person or the presence of another person by using force or threatening the use of force on any person. I.C. § 35-42-5-1(a)(1). The State alleged that Smith knowingly or intentionally took “a gun and/or cell phone from Abdullah Mubarak or the presence of Abdullah Mubarak, by using force or by threatening the use of force[.]” Appellant's App. Vol. 2 at 48.

[25] Smith contends that “[t]he State failed to present any evidence that a phone or gun was taken from” Mubarak. Appellant's Br. at 41.³ In response, the State relies on one of Smith's text messages, which states, “Omm but I took phones and all, and I made them all put gloves on so I made it look like a bad lick[,]” i.e., made it look like the victims had unsuccessfully attempted to rob their murderer at gunpoint and worn gloves to protect their hands from gunshot residue. Ex. Vol. 9 at 86 (State's Ex. 298).⁴ Smith points out that the State acknowledged in closing argument that Mubarak's phone was never recovered, and he argues that, “at most, the text message's contents are limited to supporting a reasonable inference that phones were taken from victims that had/put gloves on. Only Thomas and James had gloves on. [Mubarak] did not have gloves on.” Reply Br. at 8 (record citations omitted).

[26] Be that as it may, the inference that Smith asks us to draw is not favorable to the jury's verdict. It was just as reasonable for the jury to infer that Smith's reference to “phones”—plural—meant that he admitted to taking both James's phone and Mubarak's phone. Accordingly, pursuant to our deferential standard of review, we affirm Smith's conviction for robbing Mubarak.

Issue Three: Admission of Cell Phone and Social Media Records

[27] Next, Smith asserts that the trial court committed reversible error in admitting certain electronic records.⁵ “Generally, we review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion.” Brummett v. State, 230 N.E.3d 968, 973 (Ind. Ct. App. 2024), trans. denied. “We reverse only when the decision is clearly against the logic and effect of the facts and circumstances.” Id. “We may affirm a trial court's decision regarding the admission of evidence if it is sustainable on any basis in the record.” Id.

[28] Smith challenges the admissibility of various cell phone and social media records linked to Thomas, James, Mubarak, and himself based on either lack of proper authentication under Indiana Evidence Rule 902 or lack of probable cause under the Fourth Amendment to the United States Constitution. In his original brief, however, Smith makes no mention of State's Exhibits 298 and 299, to which he objected at trial on “Constitutional” grounds. Tr. Vol. 7 at 72.

[29] Exhibit 298 contains numerous incriminating text messages that were extracted pursuant to a search warrant from one of the six cell phones found in Smith's bedroom (“phone 1”). See, e.g., Ex. Vol. 9 at 60 -61 (“n***a I can't go over to that spot” “I just caught a body over there”), 61-62 (“This my opps Glock” “I took him to test it Bc he ain't think p80 would work” “That's why it's scratched he dropped it I hit him in head and blew him with own switches” “This n***a got my cousin killed he just ain't know I knew”), 68 (“I won't lie I used the p80 too Bc he was with his friend” “I took my switch off my Constitutional[⁶ ] Bc he thought we was testing it on his p80” “then hit em semi and cleaned up with switch”), 69 (“head shot Bc I ain't want him to whack me”), 70 (“I got 3 bodies” “In the same woods”), 77 (“N****s eat 9 bullets”), 84 (“they got my opps on the news as missing”), 86 (“Omm but I took phones and all, and I made them all put gloves on so I made it look like a bad lick” “I took em to test switches it's was my opps”); Ex. Vol. 10 at 5 (“I took my switch off to put it on his” “And blew him down with it” “Bc like I said they thought we was finna test s**t and get put on”), 6 (“Like I played f**k out these n****s” “I hadda use constitutional on semi to clean up tho bc mfka was still gagging and shit”), 8 (“I didn't even know his friend” “He said literally please”), 9 (“Straight head shots”), 11 (“I told em put gloves on for gun powder residue” “To make it look like a lick”).⁷ The cell service subscriber for phone 1 was Smith's grandmother. Tr. Vol. 5 at 153-54, Tr. Vol. 8 at 90.

[30] Exhibit 299 contains incriminating Google searches that were extracted from a second cell phone (“phone 6”) pursuant to a separate warrant. See, e.g., Ex. Vol. 10 at 36 (“how many deaths is considered a mass murder”), 38 (“homicide lawyer cost”), 39 (“fbi investigates triple homicide”), 41 (“How difficult is it to subpoena phone records”), 42 (“does freezing a gun remove dna”). At trial, Smith admitted that he had used both phones, and on appeal the State relies on Exhibits 298 and 299 in contending that any error in the admission of the other electronic records was harmless.

[31] In his reply brief, Smith argues that Exhibits 298 and 299 were not admissible because they were “obtained in violation of the Fourth Amendment.” Reply Br. at 13. We would be well within our discretion to find this argument waived. See Higgason v. State, 210 N.E.3d 868, 885 n.7 (Ind. Ct. App. 2023) (“[I]t is well-settled that a party on appeal waives any argument presented for the first time in its reply brief.”), trans. denied; Thompson v. Thompson, 811 N.E.2d 888, 920 (Ind. Ct. App. 2004) (finding argument raised for first time in reply brief waived and noting that appellant's failure to raise argument in original brief denied appellee an opportunity to respond), trans. denied.

[32] Waiver notwithstanding, Smith has failed to establish reversible error. “According to the Fourth Amendment, ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.’ ” Banks v. State, 231 N.E.3d 853, 860 (Ind. Ct. App. 2024), trans. denied. “Probable cause is a fluid concept incapable of precise definition and is to be decided based on the facts of each case.” Id.

In determining whether a police officer's affidavit sets forth probable cause to issue a search warrant, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Put differently, the central question in a probable cause determination is whether the affidavit presents facts, together with reasonable inferences, demonstrating a sufficient nexus between the suspected criminal activity and the specific place to be searched.

Id. (citation modified). “In determining whether an affidavit provided probable cause for the issuance of a search warrant, doubtful cases are to be resolved in favor of upholding the warrant.” Id. (quoting State v. Stone, 151 N.E.3d 815, 818-19 (Ind. Ct. App. 2020), trans. denied).

[33] When a warrant is sought to search a cell phone, “the affidavit must allege more than just the fact that the person who is suspected of criminal activity has a cell phone.” Id. “As other courts have explained, affidavits that rely on the ubiquitous presence of cell phones and text messaging in daily life are insufficient to establish the required nexus.” Id. (citing Commonwealth v. Henley, 171 N.E.3d 1085, 1109 (Mass. 2021)). “Instead, ‘there must be specific, not speculative, evidence linking the device in question to the criminal conduct.’ ” Id. (quoting Henley, 171 N.E.3d at 1109). The constitutionality of a search is a pure question of law that we review de novo. Conn v. State, 89 N.E.3d 1093, 1097 (Ind. Ct. App. 2017), trans. denied. If evidence obtained in violation of the Fourth Amendment “should have been excluded but its admission was harmless beyond a reasonable doubt, the error does not require reversal.” Zanders v. State, 118 N.E.3d 736, 742 (Ind. 2019) (citing Chapman v. California, 386 U.S. 18, 24 (1967)).

[34] The State points out that “[w]hen the police applied for ․ search warrants to search the six cellphones that they found in Smith's bedroom,[⁸ ] they included the exact same details about the investigation that they had included in the affidavit to search Smith's grandmother's house[.]” Appellee's Br. at 30. As mentioned above, this Court found that the search warrant for the house was supported by probable cause. The police then “added more information based on the continued investigation[,]” id. at 31, including details about the firearms, ammunition, and cell phones that were found in Smith's bedroom during the search.

[35] The affidavits for the phones, which are identical, aver that Thomas's phone records, which his mother obtained from his service provider, “showed the number 317-847-8163”—phone 1's number—“was called by Thomas or received by Thomas several times on October 10, 2021[,]” the day that he met Smith in the convenience store mere hours before he was murdered. Appellant's App. Vol. 6 at 15.⁹ The affidavits also aver that a juvenile who knew Smith, Thomas, James, and Mubarak told Detective Torres that “the cell number he/she had for [Smith] was 317-414-4550”—phone 6's number. Id. This number was traced to Smith's great-grandmother and the West Thompson Road address via a runaway report. Id.¹⁰

[36] Smith argues,

Law enforcement had two numbers they believed were associated with Smith, but only one was confirmed as communicating with Thomas on [October 10] and that was clearly established in the affidavit ․ Submitting a search warrant for six phones when specific evidence for only one phone number existed shows the [warrants were] not supported by probable cause.

Appellant's Br. at 52.

[37] Because Smith was seen with Thomas shortly before his death; phone 1 was used to communicate with Thomas around that time; Thomas's body was surrounded by 9-millimeter fired cartridge cases; and a 9-millimeter handgun and ammunition were found in Smith's bedroom, we conclude that the State sufficiently linked phone 1 to Thomas's murder to establish probable cause to search that phone, and thus the trial court did not abuse its discretion in admitting State's Exhibit 298.¹¹ The link between phone 6 and the murders is tenuous at best, but because Smith admitted at trial to conducting the Google searches quoted above, Tr. Vol. 7 at 212, we conclude that any error in the admission of Exhibit 299 was harmless beyond a reasonable doubt.¹²

[38] Finally, because Exhibit 298 contains confessions to the murders and includes details that only the murderer would have known (such as Mubarak's plea for mercy and the reason that Thomas and James were wearing gloves),¹³ and because Smith's post-murder Google searches demonstrate consciousness of guilt, we conclude that any error in the admission of the remaining cell phone and social media records was also harmless beyond a reasonable doubt.¹⁴

Issue Four: Firearms Evidence

[39] Smith argues that the trial court committed reversible error in admitting the testimony of the State's firearms expert regarding ballistics evidence, which he claims does not rest on reliable scientific principles as required by Indiana Evidence Rule 702(b). He also argues that the trial court deprived him of his Sixth Amendment right to present a defense by excluding the testimony of his own firearms expert, who challenged the State's expert's methodology.¹⁵ For the reasons stated in the previous paragraph, we conclude that any error in those rulings was harmless beyond a reasonable doubt.

Issue Five: Double Jeopardy

[40] Smith further contends that his convictions for possession of a machine gun and dangerous possession of a firearm violate substantive double jeopardy principles. “We review double jeopardy claims de novo.” Russell v. State, 234 N.E.3d 829, 855 (Ind. 2024).

[41] Our Supreme Court has stated that “substantive double jeopardy refers to claims related to multiple convictions for the same offense in a single proceeding.” A.W. v. State, 229 N.E.3d 1060, 1066 (Ind. 2024) (emphasis omitted) (citing Wadle v. State, 151 N.E.3d 227, 246-47 (Ind. 2020)). “Substantive double jeopardy claims 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.” Wadle, 151 N.E.3d at 247. Smith contends, and the State does not dispute, that we are dealing with the second variety and thus the analysis in Wadle, as modified by A.W., applies.¹⁶

[42] Smith's argument that he is entitled to relief under Wadle is based on the premise that both convictions are based on the single criminal act of possessing a single firearm: the Glock equipped with a Glock switch, which turned it into a machine gun.¹⁷ Smith observes that in A.W., the Supreme Court held that the juvenile respondent's adjudications for possession of a machine gun and dangerous possession of a firearm violated substantive double jeopardy principles because the offenses were both inherently and factually included and were based on his possession of a single Glock handgun with a Glock switch “for at least thirty seconds” during his flight from a traffic stop, which was “compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” 229 N.E.3d at 1073 (quoting Wadle, 151 N.E.3d at 253).

[43] To be sure, the State presented evidence that Smith possessed two handguns, but the record is, at best, ambiguous as to whether his convictions are based on two different handguns. The possession of a machine gun charge specifically mentions the Glock, but the dangerous possession of a firearm charge does not mention a specific firearm, and the State made no attempt to establish that the dangerous possession of a firearm charge was based on Smith's possession of the Polymer 80.¹⁸ Because we must construe any ambiguities in Smith's favor, id. at 1070-71, we find a substantive double jeopardy violation and therefore reverse and remand with instructions to vacate Smith's conviction for dangerous possession of a firearm, which will not affect his aggregate sentence.

Issue Six: Errors in Sentencing Order

[44] Next, Smith argues, and the State agrees, that the sentencing order incorrectly describes his Level 5 felony robberies as “resulting in serious bodily injury,” Appellant's App. Vol. 7 at 2, an enhancing circumstance that applies only to Level 2 felony robberies. I.C. § 35-42-5-1(a). The trial court is directed to correct this error on remand.

Issue Seven: Merger of Murder and Felony Murder Convictions

[45] Smith also argues, and the State again agrees, that the trial court erred in merging his felony murder convictions with his murder convictions instead of vacating them. “If a trial court does not formally enter a judgment of conviction on a jury verdict of guilty, then there is no requirement that the trial court vacate the ‘conviction,’ and merger is appropriate.” Kovats v. State, 982 N.E.2d 409, 414 (Ind. Ct. App. 2013). “However, if the trial court does enter judgment of conviction on a jury's verdict, then simply merging the offenses is insufficient and vacation of the offense is required.” Id. at 414-15. Because the trial court entered judgment of conviction on Smith's felony murder convictions, the court must vacate those convictions on remand.

Issue Eight: Appropriateness of Sentence

[46] Finally, Smith asks us to reduce his 189-year aggregate sentence pursuant to Indiana Appellate Rule 7(B), which provides that this 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.” Our “role under Rule 7(B) is to ‘leaven the outliers,’ and we reserve our 7(B) authority for exceptional cases.” Livingston v. State, 113 N.E.3d 611, 613 (Ind. 2018) (per curiam) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). Indiana's flexible sentencing scheme allows trial courts to tailor a sentence appropriate to the circumstances presented, and “the trial court's judgment should receive considerable deference.” Cardwell, 895 N.E.2d at 1222.

[47] Whether we regard a sentence as inappropriate 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 facts that come to light in a given case.” Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[48] “[A]ppellate review 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 counts.” Cardwell, 895 N.E.2d at 1225. When a perpetrator commits the same offense against more than one victim, “enhanced and 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). Smith bears the burden of persuading us that the trial court's sentence is inappropriate. King, 894 N.E.2d at 268.

[49] “In determining whether a sentence is inappropriate, the advisory sentence ‘is the starting point the Legislature has selected as an appropriate sentence for the crime committed.’ ” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). The sentencing range for murder is between forty-five and sixty-five years, with an advisory sentence of fifty-five years. I.C. § 35-50-2-3(a). The sentencing range for a Level 3 felony is between three and sixteen years, with an advisory sentence of nine years. I.C. § 35-50-2-5(b). The sentencing range for a Level 5 felony is between one and six years, with an advisory sentence of three years. I.C. § 35-50-2-6(b). And the maximum sentence for a Class B misdemeanor is 180 days. I.C. § 35-50-3-3.

[50] Here, the trial court imposed consecutive sixty-year sentences for the three murder convictions; concurrent four-year sentences for the two Level 5 felony robbery convictions, to be served concurrent to the sentences for the murder convictions; a nine-year sentence for the possession of methamphetamine conviction, to be served consecutive to the sentences for murder and concurrent to the sentences on the remaining counts; and concurrent sentences of four years for the possession of a machine gun conviction, one year for the dangerous possession of a firearm conviction, and 180 days for the possession of marijuana conviction. Thus, Smith received either the advisory sentence or a moderately enhanced sentence on each count.

[51] “Our analysis of the ‘nature of the offense’ requires us to look at the nature, extent, heinousness, and brutality of the offense.” Pritcher v. State, 208 N.E.3d 656, 668 (Ind. Ct. App. 2023). Smith planned to murder his young friends Thomas and James, lured them into the woods on consecutive nights under the false pretense of testing Glock switches, and shot them multiple times. Smith tricked them into putting gloves on their hands to make it look like they had attempted to rob their killer at gunpoint. Smith shot Mubarak, an innocent teenage bystander whom Smith did not know, nine times despite his plea for mercy. One of the victims was “still gagging” after the initial fusillade, so Smith used his handgun “on semi to clean up[.]” Ex. Vol. 10 at 6. Smith then left “the bodies in the cold and the rain[,]” as the trial court noted. Tr. Vol. 8 at 199. Smith asserts that “the murders were not heinous[,]” Appellant's Br. at 70, but this assertion flies in the face of the evidence presented at trial. Moreover, Smith robbed two of his victims, and police found approximately 70 grams of methamphetamine pills and 70 grams of marijuana in his bedroom, which he intended to sell. Tr. Vol. 7 at 219, 238. Smith has failed to persuade us that the nature of his offenses justifies a reduced sentence.

[52] Smith has also failed to offer any examples of “substantial virtuous traits or persistent examples of good character.” Stephenson, 29 N.E.3d at 122. To the contrary, Smith has a history of delinquent activity and probation violations, committed the instant offenses while there were outstanding warrants for his arrest, and violated the conditions for his pretrial release by violating a no-contact order and possessing firearms. Smith's killings of his friends were premeditated, and he summarily executed a total stranger who happened to be in the wrong place at the wrong time. Smith then attempted to cover his tracks by selling firearms and swapping out their parts, and he expressed no remorse for his victims. Indeed, as demonstrated in State's Exhibit 298, Smith bragged callously and matter-of-factly about the murders.

[53] Instead of identifying any personal virtues, Smith emphasizes his age when he committed his crimes, noting that our Supreme Court has stated that a sixteen-year-old defendant's “age is a major factor that requires careful consideration during Appellate Rule 7(B) review.” Wilson v. State, 157 N.E.3d 1163, 1182 (Ind. 2020). Smith also references his turbulent childhood due to his parents’ criminal activity and substance abuse issues, as well as his own substance abuse and mental health issues.¹⁹ Smith claims that “[h]e had an underdeveloped sense of responsibility and was highly susceptible to negative influence and outside pressures.” Appellant's Br. at 71. But Smith cites no record evidence to support this claim.

[54] The State points out that “[m]any people have bad childhoods, but not many people become triple murderers.” Appellee's Br. at 47. The State further observes that “[t]here are both relatively old offenders who seem clueless and relatively young ones who appear hardened and purposeful.” Id. (alteration in Appellee's Br.) (quoting Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000)). The State then asserts, “Hardened and purposeful fairly describes Smith.” Id. Based on the evidence presented at trial, we must agree.

[55] Smith characterizes his 189-year sentence as a “de facto life sentence” and argues that such a sentence “denies a child all hope.” Appellant's Br. at 69. We note that Smith is now an adult and that our legislature has granted defendants like him an opportunity for hope in the form of Indiana Code Section 35-38-1-17(n). That subsection provides that a person convicted of committing an offense when the person was less than eighteen years of age may file a petition for sentence modification without the consent of the prosecuting attorney if the person has actually served at least “twenty (20) years of the person's sentence, if the person is serving a sentence for murder.” Id. In Kelly v. State, our Supreme Court observed that this provision allows “youthful offenders” like Smith to “have their sentence reexamined ․ when courts have a better opportunity to assess whether the individual has been rehabilitated, or is on that path.” 257 N.E.3d 783, 801 (Ind. 2025).²⁰ There is no indication that Smith is currently on that path or will be anytime soon. Instead of pledging to better himself while incarcerated, he simply told the trial court that he was “grateful to go to prison” because he would “rather go to prison than get out and end up dead.” Tr. Vol. 8 at 192.

[56] In sum, Smith has failed to persuade us that his sentence is inappropriate in light of the nature of the offenses and his character.²¹ Therefore, we affirm it.

Conclusion

[57] We affirm Smith's convictions for murder, robbery, possession of a machine gun, possession of methamphetamine, and possession of marijuana. We also affirm his aggregate sentence. We reverse Smith's conviction for dangerous possession of a firearm on double jeopardy grounds and remand with instructions to vacate that conviction. On remand, the trial court must also vacate Smith's convictions for felony murder and correct its sentencing order regarding his robbery convictions.

[58] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   The statute was recodified as Indiana Code Section 35-48-1.1-29 effective July 1, 2025.

2.   In a brief cross-examination, defense counsel did not question Mohaupt at all about the marijuana and did not dispute her testimony that the pills found in the backpack contained methamphetamine.

3.   Smith also contends that “[t]he State did not present any evidence that [Mubarak] had a phone on him at the time he was shot[.]” Appellant's Br. at 42. As mentioned above, Al Shelebi testified that she texted Mubarak on the night of his murder, Tr. Vol. 4 at 170, which is circumstantial evidence that he did have a phone on him at the time he was shot.

4.   We address the admissibility of State's Exhibit 298 in the next section.

5.   According to Smith, the claims of error asserted in issues three and four relate to his murder convictions and his conviction for robbing James. Appellant's Br. at 72.

6.   The State notes, “Smith had a Glock with the slide and frame wrapped with ‘We the People[,] Life, Liberty, and the Pursuit of Happiness, 1789. Preserve, Protect, and Defend,’ which the police found part of in Greenwood in 2023.” Appellee's Br. at 12 n.1 (citing, inter alia, Tr. Vol. 6 at 92-93, 151). Smith claimed that this Glock belonged to his friend KO, Tr. Vol. 7 at 217, whom we mention in footnotes 12 and 13 below.

7.   Exhibit 298 indicates that Thomas's and James's murders were premeditated and that the sender of the text messages tried to sell his handguns after the murders. See Ex. Vol. 8 at 4-5 (texts from Oct. 10) (“Dealing with shit” “My n***a got shot and s**t hadda handle something”), 9 (“ima kill the n****s either way”); Ex. Vol. 9 at 57 (texts from Oct. 12) (“I need these glocks gone” “like asap”), 92 (texts from Oct. 14) (“I gotta sell all these” “They all was used”). Moreover, Exhibit 298 indicates that the sender attempted to avoid having the murder weapon traced back to him by changing the barrel. See Ex. Vol. 9 at 71 (texts from Oct. 12 and 14) (“I put a whole New barrel in it”), 73 (“you would have to get caught soon after the crime and them check barrel and fire to see if it's same”), 92 (“It's a ghost” “And I changed barrel” “It wouldn't even be hot”).

8.   Smith asserts that the search warrant affidavits “alleged the phones were ‘seized from Caden Smith,’ insinuating the phones were seized from his person.” Appellant's Br. at 50 (quoting Appellant's App. Vol. 6 at 25, 41, 57, 73, 89, 105). The quoted language appears in the list of items and information authorized to be seized that was attached to each search warrant, not in the affidavits themselves, which state that the phones were found in Smith's bedroom. Appellant's App. Vol. 6 at 16, 32, 48, 64, 80, 96.

9.   Here, and elsewhere, we cite only to the phone 1 affidavit for simplicity's sake.

10.   Smith's great-grandmother was his legal guardian and was in Florida when he was arrested. Tr. Vol. 8 at 27.

11.   At trial, Smith testified that he shared phone 1 and his Instagram account with a friend named KO and would lend the phone to him “for a couple days at a time.” Tr. Vol. 7 at 184. Smith claimed that KO was in possession of the phone when the murders occurred, told Smith that he had committed the murders, and warned Smith that the police “would probably try to question [Smith] when they got [his] phone records[.]” Id. at 211. The State accurately summarizes Smith's testimony as a claim that KO “was using his cellphone whenever it sent any incriminating messages.” Appellee's Br. at 15. Obviously, the jury did not find this testimony credible.

12.   Smith testified that he conducted the Google searches after KO admitted to the murders, told him not to say anything to the police, and gave him the Polymer 80, which “was all cold and wet[.]” Tr. Vol. 7 at 209. Obviously, the jury did not find this testimony credible, either.

13.   Furthermore, the text messages “I got 3 bodies” “In the same woods” were sent before the bodies were discovered. Ex. Vol. 9 at 70.

14.   We note that any error in the admission of the evidence to which Smith objected on authentication grounds, rather than constitutional grounds, is subject to the less stringent “probable impact test” of Indiana Appellate Rule 66(A). Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023), cert. denied. See Ind. Appellate Rule 66(A) (“No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.”). Under this test, “the error's probable impact is sufficiently minor when—considering the entire record—our confidence in the outcome is not undermined.” Id.

15.   The State's expert, firearms examiner Michael Putzek, testified, among other things, that bullet fragments found in Thomas's and Mubarak's bodies, as well as bullet fragments and cartridge cases found at the crime scene, had been fired from the Polymer 80 found in Smith's bedroom. In an offer of proof, Smith's expert, William Tobin, opined that Putzek's methodology was unscientific and unreliable. The trial court excluded Tobin's testimony because he had not tested or reviewed any of the evidence in this case and because Smith had an opportunity to cross-examine Putzek about his methodology.

16.   Given the nature of Smith's argument, we need not delve into the intricacies of Wadle’s three-part test.

17.   See I.C. §§ 35-47-5-8 (2021) (“A person who knowingly or intentionally owns or possesses a machine gun commits a Level 5 felony.”), 35-31.5-2-190 (2021) (defining “machine gun” as “a weapon that: (1) shoots; or (2) can be readily restored to shoot; automatically more than one (1) shot, without manual reloading, by a single function of the trigger”), 35-47-10-5(a) (2021) (“A child who knowingly, intentionally, or recklessly possesses a firearm for any purpose other than a purpose described in section 1 of this chapter commits dangerous possession of a firearm, a Class A misdemeanor.”).

18.   Smith and the State rely on statements by the deputy prosecutor in opening and closing arguments to support their respective positions, but it is not altogether clear whether courts may rely on arguments of counsel in resolving substantive double jeopardy claims under Wadle. See Wadle, 151 N.E.3d at 240 (referring to the “actual evidence” test adopted in the overruled Richardson v. State, 717 N.E.2d 32 (Ind. 1999), which “examine[d] whether—based on the charging information, jury instructions, and arguments of counsel at trial—there's a ‘reasonable possibility’ that the jury used the same evidence to support two or more convictions) (quoting Richardson, 717 N.E.2d at 53). Neither Wadle nor A.W. explicitly states that arguments of counsel may play any role in a post-Richardson substantive double jeopardy analysis. Indeed, A.W. refers to the third step of the Wadle test as “a cabined version of Richardson’s actual evidence test[,]” in which a court “examines the facts underlying [the offenses at issue], as presented in the charging instrument and as adduced at trial.” 229 N.E.3d at 1072 (alteration added) (emphasis in A.W. removed) (quoting Wadle, 151 N.E.3d at 249). Regardless, the deputy prosecutor in this case never specifically linked the Polymer 80 to the dangerous possession of a firearm charge in either opening or closing argument.

19.   As mentioned above, Smith presented no evidence or argument at sentencing. His presentence investigation report indicates that both parents have multiple arrests and convictions and that he was raised by his great-grandmother; that he has been hospitalized “due to suicide attempts and aggressive behaviors”; that he has been diagnosed with major depressive disorder, cannabis use disorder, conduct disorder, and attention-deficit/hyperactivity disorder; and that he has used alcohol, marijuana, and various psychedelic and prescription drugs. Appellant's App. Vol. 6 at 236-40.

20.   Indiana Code Section 35-38-1-17(n) was enacted in 2023. Accordingly, we find that the pre-enactment cases on which Smith relies have minimal persuasive value. Also, we decline to follow the majority's approach in Banks v. State, 228 N.E.3d 528 (Ind. Ct. App. 2024), in which the sentence of the defendant (who was sixteen years old when he and two others participated in the murder of four victims) was reduced from 220 years to 135 years, based on his age, to “make[ ] it more likely that, with good behavior, a trial court would grant a modification under Section 35-38-1-17(n) and reduce his sentence to a point that would allow for some life outside of prison.” Id. at 539. Here, Smith has failed to persuade us that his 189-year sentence for singlehandedly murdering three people is inappropriate, and his future rehabilitative efforts, if any, may stand or fall on their own merits if and when he petitions to modify his sentence two decades from now.

21.   Smith requests a sentence of seventy-seven years, which is largely based on concurrent terms for his three murder convictions. This request depreciates the harm suffered by each victim and disregards the axiom that “the existence of multiple victims supports the imposition of consecutive sentences.” Diaz v. State, 158 N.E.3d 363, 371 (Ind. Ct. App. 2020).

Bailey, Judge.

Tavitas, J., and Kenworthy, J., concur.