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 establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
E. PAIGE FREITAG GREGORY F. ZOELLER
Jones, McGlasson & Benckart Attorney General of Indiana
Bloomington, Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
FILED
Jan 19 2012, 9:36 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
RAYMOND BENJAMIN GRAY, )
)
Appellant-Defendant, )
)
vs. ) No. 82A04-1106-CR-327
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Robert J. Tornatta, Judge
Cause No. 82D02-1008-MR-801
January 19, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Raymond Benjamin Gray carried an unlicensed handgun when he accompanied his
wife and children to a sporting event at an Evansville park. Shortly after arriving, he
encountered a man who had been in a dispute with his brother. When the man’s associate
punched him from behind, Gray fired his weapon several times. One of the bullets struck the
assailant in the head, and he died. Gray fled, but when police apprehended him, he
cooperated. A jury acquitted him of voluntary manslaughter, but convicted him of class C
felony criminal recklessness and class A misdemeanor carrying a handgun without a license.
Gray now appeals, challenging his eight-year aggregate executed sentence. Finding that the
trial court acted within its discretion and that Gray has failed to establish the
inappropriateness of his sentence, we affirm.
Facts and Procedural History
At 9:00 p.m. on August 5, 2010, Gray took his wife, three of their five children, and
two teenaged cousins to an Evansville park for a summer basketball tournament. The
tournament was a community event, and approximately 250 people were at the park that
night. Several years earlier, Gray had been attacked with a knife at a similar event at a Gary,
Indiana park. As a result, he carried a handgun with him to the Evansville park that night.
He did not have a license to carry the handgun.
Shortly after arriving, Gray got into an argument with Mario Watkins and Dewayne
Thomas concerning a disagreement between his brother and Watkins. Tempers momentarily
calmed when Antoine Adams intervened. Gray began to walk away, and Watkins and
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Thomas followed. According to the park’s surveillance cameras, Thomas hit Gray in the
back of the head, and Gray pulled out the handgun and fired three to eight shots, one of
which hit Thomas in the head. As the shots rang out across the playground area, onlookers
began to scatter. Gray fled the scene and discarded his handgun and clothes. Thomas was
taken by ambulance to a nearby hospital, where he died from his gunshot wound.
Later, Gray’s wife returned home and found Gray there. He had taken a shower,
changed his clothes, and cut his hair. He considered fleeing, but told his wife that he was
going to turn himself in. Police later found him hiding in the backseat of his minister’s
vehicle and arrested him. Gray admitted shooting Thomas, but claimed self-defense/defense
of his family. He wrote an apology letter and told police the location of the weapon as well
as his clothes.
On August 10, 2010, the State charged Gray with murder, class C felony criminal
recklessness, and class A misdemeanor carrying a handgun without a license. The murder
charge was later amended to class A felony voluntary manslaughter. On April 27, 2011, a
jury found him guilty on the criminal recklessness and handgun counts and acquitted him of
voluntary manslaughter.
At a May 25, 2011, sentencing hearing, Gray cited his minimal criminal history and
his family support obligations in requesting a suspended sentence, work release, or home
detention. The State argued in favor of an executed sentence, citing a prior firearm
conviction in Illinois. The trial court identified as aggravators Gray’s prior firearm offense,
the number of shots fired, the victim’s death, and the crowded, family-oriented location.
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The court sentenced Gray to an eight-year executed term for criminal recklessness and a
concurrent one-year term for the handgun offense. This appeal ensued. Additional facts will
be provided as necessary.
Discussion and Decision
Gray claims that the trial court abused its discretion in sentencing him. He also asks
us to revise his sentence pursuant to Indiana Appellate Rule 7(B). We address each
contention in turn. Sentencing decisions are within the trial court’s discretion. Anglemyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. “So long as the
sentence is within the statutory range, it is subject to review only for an abuse of discretion.”
Id. An abuse of discretion occurs if the decision is “clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual deductions
to be drawn therefrom.” Id. (citations and quotation marks omitted).
I. Abuse of Discretion
Gray claims that the trial court abused its discretion in applying certain aggravating
and mitigating circumstances at sentencing. A trial court may impose any sentence that is
authorized by Indiana’s Constitution and statutes regardless of the presence or absence of
aggravating or mitigating circumstances. Ind. Code § 35-38-1-7.1(d). If the trial court finds
the existence of aggravating or mitigating circumstances, then it is required to give a
statement of its reasons for selecting the sentence that it imposes. Anglemyer, 868 N.E.2d at
490. One of the ways that a trial court may abuse its discretion is by failing to consider
aggravating or mitigating factors that are clearly supported by the record and advanced for
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consideration during sentencing. Id. at 490-91.
The trial court sentenced Gray to an eight-year term for his class C felony criminal
recklessness conviction and a concurrent one-year term for his class A misdemeanor handgun
conviction. The statutory sentencing range for a class C felony is two to eight years, with a
four-year advisory term. Ind. Code § 35-50-2-6. A class A misdemeanor conviction subjects
the offender to a sentence of not more than one year. Ind. Code § 35-50-3-2.
The trial court found the following aggravating circumstances: victim impact, Gray’s
criminal history, and the circumstances surrounding the shooting. Gray does not dispute that
victim impact and criminal history are proper considerations in sentencing pursuant to
Indiana Code Section 35-38-1-7.1(a). Instead, he asserts that the trial court improperly
counted as aggravating circumstances its opinions and biases concerning his decision to take
a handgun to a crowded park in Evansville, as opposed to Gary, Indiana. However, with
respect to the family setting, we note that it is proper to consider whether a violent offense
was committed in the presence of children. Ind. Code § 35-38-1-7.1(a)(3). Moreover, with
respect to the issue of safety in Indiana’s various cities, the trial judge addressed the two
cities, but seemed to grapple more with the reasonableness of Gray’s defense of family
argument, indicating that he could “not wrap [his] hands around the whole concept that
[Gray] had the gun to protect [his] family.” Tr. at 480. The trial court went on to say that
“when you want to take the kids out for the night, you don’t take them to a place where you
feel like you have to take a gun to be safe.” Id. at 481. We conclude that these comments
merely emphasized Gray’s poor judgment and did not amount to an abuse of discretion.
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Gray also argues that the trial court ignored his financial hardship argument. In this
vein, we note that “many persons convicted of serious crimes have one or more children and,
absent special circumstances, trial courts are not required to find that imprisonment will
result in an undue hardship.” Reese v. State, 939 N.E.2d 695, 703 (Ind. Ct. App. 2011),
trans. denied. Gray made no showing of special circumstances of undue hardship. Thus, the
trial court did not abuse its discretion on this point.
II. Appropriateness of Sentence
Gray also challenges the appropriateness of his sentence pursuant to Indiana Appellate
Rule 7(B), which provides that we “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [this] Court finds that the sentence is inappropriate
in light of the nature of the offense and the character of the offender.” When a defendant
requests appellate review and revision of his sentence, we have the power to affirm, reduce,
or increase the sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). Our review
should focus on the aggregate sentence rather than its consecutive or concurrent nature,
number of counts, or length of the sentence on any individual count. Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). In conducting our review, we do not look to see whether the
defendant’s sentence is appropriate or if another sentence might be more appropriate; rather,
the test is whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d 340, 344
(Ind. Ct. App. 2007). A defendant bears the burden of persuading this Court that his sentence
meets the inappropriateness standard. Anglemyer, 868 N.E.2d at 490; Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
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In considering the nature of a defendant’s offense, “the advisory sentence is the
starting point the Legislature has selected as an appropriate sentence.” Anglemyer, 868
N.E.2d at 494. Gray was sentenced to eight years for class C felony criminal recklessness,
which carries a two-to-eight-year range and a four-year advisory term. Ind. Code § 35-50-2-
6. He also received a concurrent one-year term for his handgun offense, which is the
maximum allowable for a class A misdemeanor conviction. Ind. Code § 35-50-3-2. His
offense resulted in the death of one man and, given the multiple shots fired in the crowded
playground and recreational area, the casualties could have been higher. As reckless acts go,
firing a gun multiple times in a large crowd that includes families with children carries strong
potential for serious injury. Thus, we cannot downplay the actual or potential consequences
of Gray’s conduct.
In examining Gray’s character, we see a man who packed an unlicensed handgun
while accompanying his family on an outing to a crowded park. When he was attacked from
behind with a fist, he responded with a gun. Although he did not initiate the incident, his
overreaction in firing multiple shots escalated the fracas to a deadly level. Such behavior
indicates that he is a man of extremely poor judgment who has failed to learn from prior
experience. To the extent that he cites his apology and his cooperation with police following
his arrest as evidence of good character, we note that his initial response was to flee the scene
and avoid detection by altering his appearance and discarding his clothing and weapon.
Notwithstanding his minimal criminal history in Indiana, with one conviction for class A
misdemeanor false informing, he admitted to a handgun-related conviction in Illinois.
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Finally, we again note his argument in favor of work release or probation based on his
obligation to support his five children, but we also note that prisons are unfortunately
populated with many fathers and find that Gray made no particular showing of how his status
as a father reflects well on his character, especially in light of the circumstances surrounding
these particular offenses. As such, we conclude that Gray has failed to meet his burden of
establishing that his eight-year maximum executed sentence is inappropriate in light of the
nature of the offense and his character. Accordingly, we affirm.
Affirmed.
MAY, J., and BROWN, J., concur.
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Raymond Benjamin Gray v. State of Indiana
Combined Opinion