Jan 28 2015, 10:08 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John S. Antalis Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brent Anthony Dimmitt, January 28, 2015
Appellant-Defendant, Court of Appeals Cause No.
79A02-1406-CR-443
v. Appeal from the Tippecanoe Superior
Court
The Honorable Randy J. Williams,
State of Indiana, Judge
Appellee-Plaintiff. Cause No. 79D01-1301-FB-1
Bradford, Judge.
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Case Summary
[1] On December 28, 2012, a fight broke out between several people outside of a
Lafayette bar. During the altercation, Appellant-Defendant Brent Dimmitt
attacked and injured two men, one of whom was seriously injured. Dimmitt
admitted to being the president of a criminal gang called Rebel Cause. Dimmitt
instigated and took part in the fight with several other members of Rebel Cause.
Dimmitt was convicted of Class C felony battery, Class A misdemeanor
battery, Class D felony criminal gang activity, and being a habitual offender.
Dimmitt was sentenced to consecutive terms of eight years for Class C felony
battery, one year for Class A misdemeanor battery, two years for criminal gang
activity, and eight years for being a habitual offender, for a total of eighteen
years served and one year suspended to probation.
[2] Dimmitt claims that (1) the trial court fundamentally erred by failing to
properly instruct the jury on the elements of the charge of criminal gang
activity, (2) the trial court’s sentence exceeded the maximum sentence allowed
by statute, and (3) the evidence was insufficient to support the conviction for
criminal gang activity. We find that Dimmitt’s sentence was erroneous in two
respects: (1) the trial court erred by imposing the habitual offender sentence as a
separate count rather than as an enhancement of the underlying felony and (2)
the sentence exceeded the statutory limitation for consecutive terms. We
reverse and remand with instructions that Dimmitt’s sentence be reduced by
one year. In all other respects, we affirm.
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Facts and Procedural History
[3] In the early morning hours of December 28, 2012, Troy Kelly, Raymond
Depew, and David Widner arrived at a Lafayette bar with several friends.
After being seated, a man in a blue hooded sweatshirt approached the group
and confronted Depew about eye contact that had been made upon entering the
bar. The man left the table but soon returned accompanied by two other men,
Dimmitt and Robert Niles. During the verbal confrontation that ensued
between the two groups, Dimmitt lifted his shirt, exposing several gang-related
tattoos, and stated that he was the president of a gang called Rebel Cause.
Dimmitt’s tattoos include a swastika on his chest and an emblem on his bicep
which bears the words “rebel cause” and “pres.” Ex. 32, 36. Tr. pp. 399-400.
There were other individuals in the bar with Rebel Cause tattoos. Niles was
also a member of Rebel Cause. After members of Depew’s group made
assurances that they did not want any trouble, Dimmitt shook hands with two
people in the group and left.
[4] At approximately 2:30 a.m., Depew’s group attempted to leave the bar.
Dimmitt’s group followed them outside, at which point the man in the blue
hooded shirt came up behind Depew and punched him in the back of the head.
A fight ensued between several people from each group. Dimmitt and the man
in the blue shirt grabbed Kelly while another man punched Kelly in the face.
Dimmitt then held Kelly against a car and punched him in the face. Kelly
suffered cuts and abrasions throughout his body and a torn rotator cuff.
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Minutes later, Dimmitt punched Widner, knocking him unconscious. Dimmitt
then kicked Widner in the head as he laid on the ground unconscious.
[5] As a result of the attack, Widner suffered a skull fracture and a subdural
hematoma. Widner has suffered permanent brain damage as a result of the
injury. He has since suffered from depression and anxiety and has had
problems with walking, spatial awareness, fine motor skills on his left side, and
social and communication skills.
[6] Appellee-Plaintiff the State of Indiana (the “State”) charged Dimmitt with Class
B felony aggravated battery, Class C felony battery, Class A misdemeanor
battery, Class B misdemeanor battery, Class D felony criminal gang activity,
and being a habitual offender. During the trial, the State introduced evidence
from several gang specialists that Rebel Cause was a white supremacist prison
gang that had expanded outside prisons. The gang has approximately 163
members and has been known to engage in criminal activity including murder,
kidnapping, armed robbery, arson, dealing cocaine, intimidation, battery, and
assault. To be admitted to the gang, members must commit some type of
physical assault against another person. When members leave the gang, they
are physically assaulted by other members as punishment.
[7] With regard to the criminal gang activity charge, the trial court instructed the
jury as follows:
The crime of criminal Gang Activity is defined as follows:
A person who knowingly or intentionally actively participates in a
criminal gang commits Criminal Gang Activity, a class D felony.
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Before you may convict the Defendant, the State must have proved
each of the following elements beyond a reasonable doubt:
1. The Defendant
2. Knowingly or intentionally
3. Actively participated in
4. A criminal gang
If the State failed to prove each of these elements beyond a reasonable
doubt, you must find the Defendant not guilty of Criminal Gang
Activity, a class D felony, as charged in Count V.
If the State did prove each of these elements beyond a reasonable
doubt, you may find the Defendant guilty of Criminal Gang Activity, a
class D felony, as charged in Count V.
****
The term “criminal gang” means a group with at least three (3)
members that specifically
promotes, sponsors, assists in, or participates in
or
requires as a condition of membership or continued
membership
the commission of a felony, or an act that would be a felony if
committed by an adult, or the offense of battery.
Appellant’s App. pp. 401, 408.
[8] The jury found Dimmitt guilty of Class C felony battery causing serious bodily
injury, Class A misdemeanor battery, and Class D felony criminal gang
activity. Dimmitt pled guilty to the habitual offender charge. The trial court
sentenced Dimmitt to consecutive sentences of eight years for felony battery,
one year for misdemeanor battery, two years for criminal gang activity, and
eight years for being a habitual offender, for a total of eighteen years served and
one year suspended to probation.
Discussion and Decision
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[9] Dimmitt makes the following arguments on appeal: (1) the trial court
fundamentally erred by failing to properly instruct the jury on the elements of
the charge of criminal gang activity, (2) the trial court’s sentence exceeded the
maximum sentence allowed by statute, and (3) the evidence was insufficient to
support the conviction for criminal gang activity.
I. Fundamental Error in the Jury Instructions
[10] Instructing a jury is left to the sound discretion of the trial court and this court
will review such decisions only for an abuse of discretion. Washington v. State,
997 N.E.2d 342, 345 (Ind. 2013). However, a party wishing to preserve such an
error for appeal must identify the specific grounds for objection at trial. Kane v.
State, 976 N.E.2d 1228, 1231 (Ind. 2012). As an initial matter, Dimmitt
concedes that he failed to object to the instruction at trial. However, Dimmitt
attempts to avoid the effect of his waiver by contending that the trial court
committed a fundamental error in failing to properly instruct the jury.
[11] At the time Dimmitt committed his offenses, Indiana Code section 35-45-9-3
(the “Gang Statute”) stated, “[a] person who knowingly or intentionally
actively participates in a criminal gang commits criminal gang activity, a class
D felony.” In Helton v. State, 624 N.E.2d 499, 508 (Ind. Ct. App. 1993), this
court construed the statute to require that “the active member with guilty
knowledge also have a specific intent or purpose to further the group’s criminal
conduct before he may be prosecuted.” “The specific-intent element requires
proof of a nexus between furthering the goals of the criminal gang and the
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alleged crime.” G.H. v. State, 987 N.E.2d 1164, 1168 (Ind. Ct. App. 2013) trans.
denied. Dimmitt claims that the trial court fundamentally erred by omitting the
element of specific intent from its instruction.
Fundamental error is an extremely narrow exception to the waiver rule
where the defendant faces the heavy burden of showing that the
alleged errors are so prejudicial to the defendant’s rights as to “make a
fair trial impossible.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002),
quoted in [Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012)] and [Cooper
v. State, 854 N.E.2d 831, 835 (Ind. 2006)]. In other words, to establish
fundamental error, the defendant must show that, under the
circumstances, the trial judge erred in not sua sponte raising the issue
because alleged errors (a) “constitute clearly blatant violations of basic
and elementary principles of due process” and (b) “present an
undeniable and substantial potential for harm.” Id. The element of
such harm is not established by the fact of ultimate conviction but
rather “depends upon whether [the defendant’s] right to a fair trial was
detrimentally affected by the denial of procedural opportunities for the
ascertainment of truth to which he otherwise would have been
entitled.” Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994) (quoting
Hart v. State, 578 N.E.2d 336, 338 (Ind. 1991)).
Ryan v. State, 9 N.E.3d 663 (Ind. 2014), reh’g denied. Put differently, a
fundamental error “must constitute a blatant violation of basic principles, the
harm, or potential for harm must be substantial, and the resulting error must
deny the defendant fundamental due process.” Spears v. State, 811 N.E.2d 485,
489 (Ind. Ct. App. 2004)
[12] The trial court’s failure to sua sponte instruct the jury on the specific-intent
element was not a fundamental error because there was no substantial harm to
Dimmitt. The State provided substantial evidence which indicated a nexus
between Dimmitt’s offenses and furthering the goals of his criminal gang.
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Specifically, the State showed that the members of Rebel Cause typically
engage in violent behavior, including battery, as part of ritual initiations and
punishments, and more generally to promote fear and maintain an image of
viciousness. From the beginning of the altercation between Dimmitt and the
victims’ group, Dimmitt was clear about his affiliation and leadership within
the gang. He used this affiliation, and the tattoos designating such, as a means
to intimidate the victims. Furthermore, Dimmitt took part in the batteries with
several individuals who were also identified as members of Rebel Cause.
Therefore, because the State provided evidence to support the finding of a
nexus, there was no undeniable or substantial potential for harm as is necessary
to find a fundamental error.
II. Sufficiency of Evidence
[13] Dimmitt argues that there was insufficient evidence to support his conviction
for criminal gang activity because there was not substantial evidence of a nexus
between Dimmitt’s gang affiliation and the charged offenses.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative evidence
and reasonable inferences supporting the verdict. It is the fact-finder’s
role, not that of appellate courts, to assess witness credibility and
weigh the evidence to determine whether it is sufficient to support a
conviction. To preserve this structure, when appellate courts are
confronted with conflicting evidence, they must consider it most
favorably to the trial court’s ruling. Appellate courts affirm the
conviction unless no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. It is therefore not
necessary that the evidence overcome every reasonable hypothesis of
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innocence. The evidence is sufficient if an inference may reasonably
be drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (internal quotations and
citations omitted, emphasis in original).
[14] To support his argument, Dimmitt cites to cases in which this court, and the
Indiana Supreme Court, have reversed convictions for criminal gang activity
where there was not a sufficient nexus between the offense and the gang
affiliation. Trice v. State, 693 N.E.2d 649 (Ind. App. Ct. 1998); Ferrell v. State,
746 N.E.2d 48 (Ind. 2001). In Ferrell, the Court found that “[t]he State’s case
on [the criminal gang activity] offense consisted only of evidence that Ferrell, at
some point, was a member of a gang that commits criminal offenses.” Id. at 51.
Specifically, the State only presented evidence that Ferrell had gang tattoos.
There was no other evidence which tied his commission of robbery and murder
to his gang affiliation.
[15] In Trice, the defendant belonged to a gang called D’Ware, which was known to
engage in narcotics trafficking. 693 N.E.2d at 650. Although Trice admitted to
being an active gang member, there was no evidence which showed how Trice’s
battery of the victim was related to any gang activities. Rather, the evidence
showed that Trice beat the victim “spontaneously” after the victim caused
Trice’s bottle of liquor to spill and refused to pay for it. Id. at 651.
[16] The instant case is distinguishable from Ferrell and Trice. As we have already
outlined in detail, there is substantial evidence indicating a nexus between the
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battery and the gang activity: Dimmitt openly announced his affiliation with
Rebel Cause at the outset of the confrontation and used that affiliation as a
means of intimidation; battery is commonly used by the gang for various
reasons to further its criminal goals; and Dimmitt committed the underlying
offenses together with other members of Rebel Cause. As such, the evidence
was not insufficient to support the conviction for criminal gang activity.
III. Sentence in Excess of Statutory Limits
A. Habitual Offender Enhancement
[17] The version of Indiana Code section 35-50-2-1.3 which was in effect at the time
the instant offenses were committed provided as follows:
(a) For purposes of sections 3 through 7 of this chapter, “advisory
sentence” means a guideline sentence that the court may voluntarily
consider as the midpoint between the maximum sentence and the
minimum sentence.
(b) Except as provided in subsection (c), a court is not required to use
an advisory sentence.
(c) In imposing:
(1) consecutive sentences for felony convictions that are not
crimes of violence (as defined in [Indiana Code section] 35-50-
1-2(a)) arising out of an episode of criminal conduct, in
accordance with [Indiana Code section] 35-50-1-2;
(2) an additional fixed term to an habitual offender under
section 8 of this chapter; or
(3) an additional fixed term to a repeat sexual offender under
section 14 of this chapter;
a court is required to use the appropriate advisory sentence in
imposing a consecutive sentence or an additional fixed term. However,
the court is not required to use the advisory sentence in imposing the
sentence for the underlying offense.
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[18] The trial court sentenced Dimmitt to the maximum eight-year sentence on
Count II, Class C felony battery resulting in serious bodily harm, and an
additional eight years on Count VI, habitual offender. Dimmitt argues that the
eight-year sentence for being a habitual offender violates the statute because it is
an additional fixed term greater than the four-year advisory sentence for a Class
C felony. Dimmitt mischaracterizes the statute. Section 35-50-2-1.3 states that
it does not apply to the sentence for the underlying offense. The habitual
offender statute does not carry the same advisory sentence as the statute
governing Class C felonies. Indiana Code section 35-50-2-8(h), as was in effect
at the time Dimmitt committed the instant offenses, provided that “[t]he court
shall sentence a person found to be a habitual offender to an additional fixed
term that is not less than the advisory sentence for the underlying offense nor
more than three (3) times the advisory sentence for the underlying offense.” As
such, the eight-year enhancement for being a habitual offender did not violate
the statute as the trial court could have sentenced Dimmitt up to twelve years
(three times the four-year advisory sentence for the underlying Class C felony).
[19] However, we note that the trial court erred in applying the habitual offender
sentence as a separate count. The State concedes this point and notes that a
habitual offender finding does not constitute a separate crime, nor does it result
in a separate sentence. Rather, it is a sentence enhancement imposed upon the
underlying felony conviction. Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind.
2001). As such, remand is necessary to remedy this error.
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B. Convictions Arising Out of One Episode of Criminal
Conduct
[20] Dimmitt claims that his aggregate sentence of eleven years for Class C felony
battery, Class D felony criminal gang activity, and Class A misdemeanor
battery, violated Indiana Code section 35-50-1-2(c) and should be reduced to a
term not greater than ten years.
Except as provided in subsection (d) or (e), the court shall determine
whether terms of imprisonment shall be served concurrently or
consecutively …. [T]he total of the consecutive terms of
imprisonment, exclusive of terms of imprisonment under [Indiana
Code section] 35-50-2-8 and [Indiana Code section] 35-50-2-10, to
which the defendant is sentenced for felony convictions arising out of
an episode of criminal conduct shall not exceed the advisory sentence
for a felony which is one (1) class of felony higher than the most
serious of the felonies for which the person has been convicted.
[21] Dimmitt was sentenced to eight years on the Class C felony, two years on the
Class D felony, and one year on the misdemeanor. At Dimmitt’s sentencing,
the State opined that Section 35-50-1-2(c) would only apply to the two felony
convictions and that, under that statute, Dimmitt could be sentenced to a
maximum aggregate term of ten years for the two felony convictions (the
advisory sentence for a Class B felony) and one additional year for the
misdemeanor. Dimmitt claims that his misdemeanor conviction should have
been included in the consecutive sentencing limitation of Section 35-50-1-2.
The State concedes on appeal that its prior assertion at trial was incorrect and
that the statute has been interpreted to include misdemeanors in addition to
felonies (see Purdy v. State, 727 N.E.2d 1091 (Ind. Ct. App. 2000)). However,
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the State argues that the Section 35-50-1-2 does not apply to Dimmitt’s
misdemeanor conviction because the offenses did not arise out of a single
episode of criminal conduct. We do not agree with the State’s position in this
regard.
[22] At the sentencing hearing, the State conceded that the offenses occurred as part
of a single episode of criminal conduct. Despite this apparent waiver, the State
now claims that the two separate batteries were not part of a single episode of
conduct because they were committed against two separate victims. The phrase
“episode of criminal conduct” means “offenses or a connected series of offenses
that are closely related in time, place, and circumstance.” Ind. Code § 35-50-1-
2(b). The two batteries took place approximately a few minutes apart, occurred
as part of the same conflict, in the same place, and between the same groups of
people. The only material distinction between the two crimes was the identity
of the victim. This distinction alone is not enough to determine that the
offenses were not part of the same episode of criminal conduct.
[23] In Harris v. State, 861 N.E.2d 1182 (Ind. 2007), Harris was convicted of two
counts of sexual misconduct with a minor. The two offenses occurred
approximately five minutes apart in the same apartment against two different
victims. The Indiana Supreme Court determined that the two offenses were a
single episode of criminal conduct and reduced Harris’s sentence accordingly.
Id. at 1189. In reaching this conclusion, the Court noted two other cases from
the Indiana Court of Appeals which similarly involved multiple victims and
longer time spans between offenses, yet each was determined to be a single
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“episode.” Id. (citing Trei v. State, 658 N.E.2d 131 (Ind. Ct. App. 1995) and
Ballard v. State, 715 N.E.2d 1276 (Ind. Ct. App. 1999)). We see no reason to
distinguish Dimmitt’s offenses. Accordingly, we remand with instructions to
reduce Dimmitt’s eleven-year sentence for felony battery, felony criminal gang
activity, and misdemeanor battery, to ten years.
Conclusion
[24] We reverse the trial court’s sentence and remand with instructions that (1) the
eight-year habitual offender sentence be imposed as an enhancement rather
than a separate consecutive sentence and (2) the aggregate sentence for felony
battery, misdemeanor battery, and criminal gang activity, be reduced from
eleven to ten years, which is the maximum permitted by statute at the time the
crimes were committed in the course of a single episode of criminal
misconduct.
[25] The judgment of the trial court is affirmed in part, reversed in part, and
remanded with instructions.
Najam, J., and Mathias, J., concur.
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Brent Anthony Dimmitt v. State of Indiana
Combined Opinion