MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Feb 13 2019, 8:58 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                      Curtis T. Hill, Jr.
O’CONNOR & AUERSCH                                       Attorney General of Indiana
Indianapolis, Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Zion Smith,                                              February 13, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1405
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G06-1608-MR-31797



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019                Page 1 of 13
                                             Case Summary
[1]   During the evening of July 18, 2016 and the early morning of July 19, 2016,

      sixteen-year-old Zion Smith (“Smith”) and his girlfriend, Jaquisha Love

      (“Love”) engaged in a crime spree, killing Dayron Staten (“Staten”), robbing

      and shooting at Anya West (“West”), shooting and paralyzing Valencia

      Standberry (“Standberry”), and shooting and wounding Mark May (“May”),

      Antonio Turner (“Turner”), and Antonio Trotter (“Trotter”). Smith appeals his

      convictions of one count of Murder, a felony, 1 and five counts of Attempted

      Murder, Level 1 felonies.2 He also challenges his aggregate 145-year sentence.

      We affirm.



                                                       Issues
[2]   Smith presents the following issues for review:


                 I.       Whether the State presented sufficient evidence of his
                          identity as the person who murdered Staten and attempted
                          to murder Standberry, Turner, Trotter, and May;


                 II.      Whether the State presented sufficient evidence of his
                          specific intent to kill West; and




      1
          Ind. Code § 35-42-1-1.
      2
       I.C. §§ 35-41-5-1, 35-42-1-1. He does not challenge his conviction for Robbery, as a Level 5 felony, I.C. §
      35-42-5-1.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019                 Page 2 of 13
              III.     Whether his sentence is inappropriate.


                            Facts and Procedural History
[3]   On July 18, 2016, Love asked her friend, West, to hang out with Love and

      Smith in a park on the east side of Indianapolis. Love specified that West was

      to bring her gun, and West complied. As the trio walked along, Smith stated

      that he had a .45 caliber handgun for sale, and he and West exchanged

      weapons. After West examined the .45 handgun, she handed it back to Smith.

      However, Smith announced that West’s gun was “his gun now” and he pointed

      the .45 at West’s head, threatening to “splat her s---.” (Tr. Vol. II at 244.)

      Smith directed Love to search West’s pockets. After the search, West pushed

      Love away and began to run. West heard three or four shots in her direction,

      one of which pierced her shirt and jacket. Later that evening, West hid on a

      neighbors’ porch and observed Love and Smith walking together; each had a

      handgun.


[4]   After acquiring West’s handgun, Smith and Love called Staten, who had a

      nine-millimeter handgun for sale, to discuss a trade. Staten arrived at a

      designated meeting place, but Smith and Love did not show up. Love then

      called to direct Staten to go to Olney Street. Again, Staten arrived at the

      meeting place, but Smith and Love did not. Staten went back home, receiving

      final calls from Love at 11:55 p.m. and 12:00 a.m. Shortly thereafter, Staten

      said that he was going “around the corner to go do a tradeoff,” (Tr. Vol. III at

      244), and he left with Standberry in Standberry’s vehicle.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019   Page 3 of 13
[5]   At 12:08 a.m., Indianapolis 9-1-1 operators received a report of shots fired at

      the intersection of Robson and LaSalle Streets. Police arrived to find a vehicle

      in the street with its lights on and a rear door open. Staten was slumped behind

      the steering wheel, deceased. He had been shot three times. Standberry, in the

      front passenger seat, had also been shot multiple times. One bullet had pierced

      her spine and left her paralyzed.


[6]   At 3:35 a.m., Indianapolis 9-1-1 operators received a report of shots fired on

      Wallace Avenue. A shooting had occurred at a residence where May lived with

      his girlfriend, Pamela Coomer (“Coomer”). May had been socializing with his

      friend, Trotter, and Trotter’s son, Turner, when someone knocked at the door.

      Either Coomer or Trotter answered the door and Trotter recognized Love

      “from the neighborhood.” (Tr. Vol. IV at 64.) She was accompanied by a

      young man. Trotter summoned Turner to the door; when Turner responded,

      he was immediately shot four times. He ran from the room, leaving behind his

      pants and approximately $3,000.00.


[7]   May ran to a bedroom and barricaded himself in with Coomer. After May

      located a revolver, he left the bedroom armed. When May stepped into his

      kitchen, the young man jumped from behind the stove and shot May twice.

      May, his pelvis shattered, fell into the hallway. He observed the young man

      shoot Trotter in the chest. As May saw the intruder’s gun pointed at Trotter’s

      head, May shot at the intruder. The intruder was wounded, reacting as if “the

      ghost come out of his eye like he was surprised” and his “gun went flying out of

      his hand.” (Tr. Vol. IV, pgs. 44-45.) He fled, leaving behind the handgun.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019   Page 4 of 13
      Officers found a second handgun on the kitchen floor, a .45 caliber. Smith’s

      fingerprints were found on the slide of that handgun.


[8]   Smith and Love returned to the home of a friend, where they had been staying,

      a mile away from Wallace Street. At 4:16 a.m., Indianapolis police officers

      were dispatched to the friend’s residence and found Smith suffering from a

      gunshot wound to his eye. The officers also recovered live ammunition, unfired

      cartridges, and an ammunition box with a tray. Smith’s fingerprints were on

      the ammunition tray.


[9]   Smith was charged with multiple offenses, tried jointly with Love before a jury,

      and convicted as charged.3 Smith received an aggregate sentence of 145 years:

      fifty-five years for Staten’s murder, consecutive to a thirty-year sentence for the

      attempted murder of Standberry, consecutive to concurrent sentences of thirty

      years for the attempted murders of May, Turner, and Trotter, consecutive to a

      sentence of thirty years for the attempted murder of West, and concurrent to a

      three-year sentence for West’s robbery. Smith now appeals.




      3
        Apparently due to Double Jeopardy concerns, the trial court did not enter a judgment of conviction upon
      Smith’s misdemeanor count of Carrying a Handgun without a License, and reduced the Robbery conviction
      to a Level 5 felony.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019             Page 5 of 13
                                      Discussion and Decision
             Sufficiency of the Evidence – Offenses against Staten,
                     Standberry, Turner, Trotter, and May
[10]   To convict Smith of murder, as charged, the State was required to prove beyond

       a reasonable doubt that he knowingly or intentionally killed Staten. I.C. § 35-

       42-1-1. To convict Smith of the attempted murders of Standberry, Turner,

       Trotter, and May, as charged, the State was required to prove beyond a

       reasonable doubt that he knowingly or intentionally attempted to kill the named

       victim, by engaging in conduct with the specific intent to kill, that constituted a

       substantial step toward the commission of murder. I.C. §§ 35-42-1-1, 35-41-5-1.

       Smith challenges only the element of identity.4


[11]   When considering the sufficiency of the evidence to support an appellant’s

       conviction, we neither reassess witness credibility, nor reweigh the evidence, as

       those tasks are reserved to the fact-finder. Delagrange v. State, 5 N.E.3d 354, 356

       (Ind. 2014). We consider the evidence most favorable to the conviction and

       affirm unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt. Id.


[12]   Unlike the offenses against West, there was no eyewitness testimony that Smith

       perpetrated the crimes against Staten, Standberry, Turner, Trotter, and May.




       4
           As to the offenses against West, she testified that Smith was the perpetrator.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019    Page 6 of 13
       However, “[i]t is well established that circumstantial evidence alone may be

       sufficient to sustain a conviction.” Harbert v. State, 51 N.E.3d 267, 275 (Ind. Ct.

       App. 2016). Determining identity is a question of fact. Id. (citing Whitt v. State,

       499 N.E.2d 748, 750 (Ind. 1986)). Accordingly, when the evidence of identity

       is not entirely conclusive, the weight to be given to the identification evidence is

       within the province of the jury. Id.


[13]   Here, the State presented evidence that Smith and Love were together when

       they robbed West and, later in the evening, West observed the pair walking

       together and displaying handguns. Love’s phone records indicated that she had

       contacted Staten multiple times that evening, and that she called Staten

       immediately before he was found shot to death (apparently with his own gun).

       He had stated upon leaving home that he was going to trade a gun. Staten’s

       friend Jevon Butler understood that Staten had arranged to meet Love and

       Smith.


[14]   Trotter recognized Love as the person who came to his door; she was

       accompanied by a young man. About forty minutes after shots were reported at

       the Wallace Street residence, Love and Smith returned together to the home

       where they had been staying. From the foregoing evidence, the jury could infer

       that Smith remained with Love throughout the crime spree.


[15]   Also, physical evidence implicated Smith. His fingerprint was recovered from a

       .45 caliber handgun left at the Wallace Street residence. Shell casings were

       recovered at the site of the attack on West, and it was determined that the .45


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019   Page 7 of 13
       handgun abandoned at Wallace Street was the same gun used to shoot at West.

       Smith’s palm print was found on the rear passenger door of Standberry’s

       vehicle. Bullet fragments recovered from Staten’s body were shot from the

       same nine-millimeter gun later found at Wallace Avenue. Finally, May shot

       the male intruder at Trotter’s home and shortly thereafter, Smith showed up at

       his temporary residence with a gunshot wound to his eye. Smith’s suggestions

       that someone else may have been with Love during the Robson Street and

       Wallace Street attacks is simply an invitation to reweigh the evidence, which

       we reject. Delagrange, 5 N.E.3d at 356. The State presented sufficient evidence

       to permit the jury to conclude beyond a reasonable doubt that Smith was the

       person who committed the charged crimes against Staten, Standberry, Turner,

       Trotter, and May.


               Sufficiency of the Evidence – Intent to kill West
[16]   To convict Smith of the attempted murder of West, the State was required to

       prove beyond a reasonable doubt that Smith, acting with the specific intent to

       commit murder, engaged in conduct that constituted a substantial step toward

       the commission of the crime. Davis v. State, 558 N.E.2d 811, 812 (Ind. 1990).

       Smith does not deny that he committed an overt act of shooting toward West.

       Rather, he claims that the State failed to prove beyond a reasonable doubt that

       he intended to kill West because he would have succeeded in his goal if he had

       sincerely intended to kill her.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019   Page 8 of 13
[17]   The requisite intent to commit murder may be inferred from the intentional use

       of a deadly weapon in a manner likely to cause death. Id. “Discharging a

       weapon in the direction of a victim is substantial evidence from which a jury

       can infer intent to kill.” Reese v. State, 939 N.E.2d 695, 702 (Ind. Ct. App. 2011)

       (citing Leon v. State, 525 N.E.2d 331, 332 (Ind. 1988)), trans. denied. Smith fired

       a shot near West’s foot and threatened to shoot her in the head. After West

       began running, Smith discharged three or four more shots in her direction. One

       shot pierced West’s outer clothing. There is sufficient evidence from which the

       jury could infer Smith intended to kill West.


                                      Inappropriate Sentence
[18]   Smith asks that we review and revise his sentence pursuant to Indiana

       Appellate Rule 7(B), which provides that we may revise a sentence if, after due

       consideration of the trial court’s decision, we find the sentence inappropriate in

       light of the nature of the offense and the character of the offender. Pointing to

       his youthfulness and immaturity of brain development, Smith requests a

       revision of his aggregate sentence to seventy years.


[19]   When a defendant requests review and revision of his sentence, we have the

       power to affirm or reduce the sentence. Akard v. State, 937 N.E.2d 811, 813

       (Ind. 2010). In conducting our review, we may consider all aspects of penal

       consequences imposed by the trial court, including whether the sentences run

       concurrently or consecutively. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

       2010). A defendant bears the burden of persuading this Court that his sentence


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019   Page 9 of 13
       meets the inappropriateness standard. Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (2007).


[20]   The sentencing range for murder is forty-five to sixty-five years, with an

       advisory sentence of fifty-five years. I.C. § 35-50-2-3. Smith received an

       advisory sentence for Staten’s murder. The sentencing range for a Level 1

       felony is twenty to forty years, with an advisory sentence of thirty years. I.C. §

       35-50-2-4. Smith received advisory sentences for each of the attempted murders

       of West, Standberry, Trotter, Turner, and May. The sentencing range for a

       Level 5 felony is one to six years, with an advisory sentence of three years. I.C.

       § 35-50-2-6. Smith received an advisory sentence for robbing West. Because

       some of the terms were to be served consecutively, Smith’s aggregate sentence

       is 145 years.


[21]   In imposing the sentence, the trial court considered Smith’s youth to be a

       significant mitigator but observed that he also had a significant history of

       delinquency.5 The trial court found the violence to multiple individuals and the

       fact that Standberry remained in a wheelchair because of Smith’s actions to be

       aggravating circumstances. In determining that some of the individual

       sentences should be served consecutively, the trial court found support in “the

       nature of the crime spree, the extreme violence, the opportunity for each




       5
        Smith had been arrested 13 times. He had been adjudicated delinquent for having committed three acts that
       would be misdemeanors and four acts that would be felonies, if committed by an adult. He had also violated
       probation.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019            Page 10 of 13
       defendant to stop their behavior, and yet [they] continue[d] on with violence in

       the community.” (Tr. Vol. VII, pg. 4.)


[22]   As to the nature of the offense, the advisory sentence is the starting point for

       determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d at 494.

       In determining the appropriateness of a sentence that deviates from an advisory

       sentence, we consider whether there is anything more or less egregious about

       the offense committed by the defendant that “makes it different from the typical

       offense accounted for by the legislature when it set the advisory sentence.”

       Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). Here, in each

       instance, the trial court imposed the presumptive sentence. Smith’s challenge

       does not involve a deviation and he does not argue that the circumstances of

       any of his offenses would militate toward a less-than-advisory sentence.

       Instead, his challenge appears to be directed to the order that some individual

       sentences be served consecutively to one another. Smith is to serve fifty-five

       years for murdering Staten, consecutive to thirty years for attempting to murder

       Standberry, consecutive to thirty years for attempting to murder West, and

       consecutive to the three concurrent thirty-year sentences for the attempted

       murders of May, Turner, and Trotter.


[23]   “It is a well established principle that the fact of multiple crimes or victims

       constitutes a valid aggravating circumstance that a trial court may consider in

       imposing consecutive or enhanced sentences.” O’Connell v. State, 742 N.E.2d

       943, 952 (Ind. 2001). Smith inflicted horrific injuries on multiple victims at

       three separate crime scenes. Staten died; four of the five surviving victims

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019   Page 11 of 13
       suffered serious physical injuries. Standberry was permanently paralyzed from

       the waist down and has limited movement. May suffered a shattered pelvis and

       was required to walk with a cane thereafter. Trotter was shot in the chest and

       required hospitalization. Turner, who was shot four times, had serious blood

       loss and required hospitalization. The imposition of consecutive sentences was

       supported by valid aggravators.


[24]   Yet a sentence that does not constitute an abuse of discretion may be reviewed

       under Appellate Rule 7(B). Smith directs our attention to Brown v. State, 10

       N.E.3d 1 (Ind. 2014). There, our Indiana Supreme Court reviewed an

       aggregate 150-year sentence imposed upon Martez Brown for two murders and

       one robbery committed when he was sixteen years old. Brown had received a

       maximum term of sixty-five years for each murder and a maximum term of

       twenty years for the robbery, all to be served consecutively. See id. at 3. The

       Court acknowledged the “general recognition that juveniles are less culpable

       than adults and therefore are less deserving of the most severe punishments”

       and observed “this Court has not been hesitant to reduce maximum sentences

       for juveniles convicted of murder.” Id. at 7. The Court reduced Brown’s

       aggregate sentence to eighty years.


[25]   Brown, unlike Smith, was convicted under an accomplice theory and was not

       the actual shooter. And, unlike Smith, he had received the maximum possible

       sentence despite having provided police with vital evidence. In light of the

       number and severity of Smith’s crimes and his significant juvenile history

       reflecting poorly on his character, we are not persuaded by Smith’s suggestion

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019   Page 12 of 13
       that he should be accorded the same leniency as Brown. Smith’s sentence is not

       inappropriate.



                                               Conclusion
[26]   The State presented sufficient evidence to support each of Smith’s challenged

       convictions. His aggregate 145-year sentence is not inappropriate.


[27]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1405 | February 13, 2019   Page 13 of 13
