Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of May 27 2014, 7:28 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN M. O’CONNOR GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARQUISE LEE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1310-CR-869
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
Cause No. 49G05-1209-MR-62632
May 27, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Marquise Lee appeals his conviction for attempted aggravated battery, a Class B
felony, following a bench trial. Marquise raises a single issue for our review, which we
restate as whether the State presented sufficient evidence to support his conviction. We
affirm.
FACTS AND PROCEDURAL HISTORY
Tiara Robertson1 used to date Brandon Lee and was good friends with Brandon’s
sister, Latoya Lee. Latoya is Marquise’s mother.
Sometime before September of 2012, Tiara left Brandon and began dating Ramon
Gude. This upset Latoya and, on September 5, 2012, Latoya confronted Tiara at Tiara’s
and Ramon’s shared residence. Ramon interceded in this argument and hit Latoya in the
face. Latoya was “mad” and left saying, “I’ll be back.” Transcript at 32.
On September 7, Latoya returned to Tiara’s and Ramon’s residence. Latoya was
accompanied by Marquise, Billy Young (a cousin of Latoya and Brandon), and a third,
unknown man. Tiara was upstairs when they arrived but rushed downstairs when she
heard Ramon yelling. Upon arriving downstairs, she observed Marquise attacking
Ramon, who was trying to get inside. Tiara tried to help pull Ramon inside the house
during the attack. Latoya told Tiara to “get out of the way.” Id. at 39.
Once inside the residence, Ramon “balled up” his body while the three men came
inside to continue their attack. Id. Tiara then observed Billy hand a firearm and clip to
Marquise. But Marquise was not able to load the clip into the firearm. While Tiara
The Appellant’s Brief refers to Tiara as “Tiara Richardson,” Appellant’s Br. at 2, and the
1
Appellee’s Brief refers to Tiara as “Tiara Robinson,” Appellee’s Br. at 2. But Tiara named herself as
“Tiara Robertson” during trial. Transcript at 20.
2
watched Marquise fumble with his clip and firearm, Billy was in her line of sight, and
Latoya was outside. Tiara then heard several gunshots from the direction of the unknown
man and observed that Marquise and Billy “looked . . . surprised.” Id. at 76. Ramon
collapsed, the assailants fled, and Tiara called 9-1-1. A neighbor heard the gunshots,
witnessed the assailants flee the scene, and recognized the female assailant from the
September 5 argument. Ramon died later that day from his gunshot wounds.
On September 24, the State charged Latoya, Marquise, and Billy2 with murder, a
felony, and conspiracy to commit murder, a Class A felony. The defendants were tried
jointly to the bench on September 9 and 10, 2013. Following the close of the State’s
evidence, the trial court granted the defendants’ motion for involuntary dismissal of the
murder and conspiracy to commit murder charges but kept the case open for
consideration of lesser-included battery charges. Following the trial, the court found
Marquise guilty of attempted aggravated battery, a Class B felony, and sentenced him to
fifteen years.3 This appeal ensued.
DISCUSSION AND DECISION
On appeal, Marquise asserts that the State failed to present sufficient evidence to
show that he committed attempted aggravated battery, a Class B felony. 4 When
reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or
judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003).
We look only to the probative evidence supporting the judgment and the reasonable
2
The third man was never identified or charged.
3
The court entered the same conviction and sentence for Latoya and Billy.
4
There is no dispute that attempted aggravated battery is a lesser-included offense to murder.
3
inferences that may be drawn from that evidence to determine whether a reasonable trier
of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there
is substantial evidence of probative value to support the conviction, it will not be set
aside. Id.
Pursuant to Indiana Code Section 35-42-2-1.5, to demonstrate that Marquise
committed aggravated battery the State needed to show that he “knowingly or
intentionally inflict[ed] injury on a person that create[d] a substantial risk of death or
cause[d]: (1) serious permanent disfigurement . . . .” And one attempts a crime when,
“acting with the culpability required for the commission of the crime, he engages in
conduct that constitutes a substantial step toward commission of the crime.” Ind. Code §
35-41-5-1. On appeal, Marquise asserts that there was no evidence of his intent and that
Ramon’s injuries from Marquise’s acts do not support the judgment.5
In essence, the trial court concluded that the State had demonstrated that Marquise
intended at least to severely beat Ramon but was interrupted when the unknown man at
the scene murdered Ramon. And the trial court’s conclusion is supported by the
evidence. We agree with the State that the evidence shows that Marquise and his
companions intended to inflict the type of injuries on Ramon that are contemplated in the
aggravated battery statute. Appellee’s Br. at 10. The State demonstrated that Marquise
arrived at Ramon’s residence with Latoya less than forty-eight hours after Ramon had
struck Latoya in an argument. Latoya left that argument with the admonition that she
5
We need not address the parties’ arguments on accomplice liability because Marquise was an
active participant.
4
would return, and when she did return, Marquise, Billy, and the unknown man were with
her.
The men immediately proceeded to attack Ramon. Marquise was the first to
attack him, and the men continued to beat Ramon as Tiara pulled him into the residence
and Ramon “balled up” his body to protect himself. Transcript at 39. Further, at least
two of the men were armed, and Marquise held one of the firearms at the time Ramon
was murdered.
The State’s evidence sufficiently demonstrates that Marquise intended to inflict
injury to Ramon that would have created a substantial risk of either his death or
disfigurement and that Marquise took a substantial step toward the commission of that
crime. That the attack was brought to an unexpected halt by the unknown man shooting
Ramon does not absolve Marquise of liability for his own conduct. Further, it is
irrelevant that the doctor who examined Ramon’s body did not find evidence of blunt
force trauma on Ramon’s body. Tiara’s testimony demonstrated the severity of
Marquise’s actions, and we will not reweigh her testimony. Accordingly, we affirm
Marquise’s conviction.6
Affirmed.
VAIDIK, C.J., and BROWN, J., concur.
6
Because we affirm Marquise’s conviction, we need not consider his argument that he should
have been convicted instead of a misdemeanor battery. Further, contrary to the State, we do not read the
Appellant’s Brief to raise a “variance” argument. See Appellee’s Br. at 12. Insofar as Marquise intended
to make such an argument, it is waived. Ind. Appellate Rule 46(A)(8)(a).
5