MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 FILED
this Memorandum Decision shall not be                                       Jul 26 2017, 10:25 am

regarded as precedent or cited before any                                        CLERK
                                                                             Indiana Supreme Court
court except for the purpose of establishing                                    Court of Appeals
                                                                                  and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott H. Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marcus J. Gary,                                          July 26, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1611-CR-2739
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff.                                      Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-1604-MR-3



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017                 Page 1 of 7
                                          Case Summary
[1]   Marcus J. Gary (“Gary”) was convicted of Murder, a Felony, 1 and sentenced to

      a sixty-four-year prison term. He now appeals, raising for our review the sole

      issue of whether his sentence is inappropriate under Appellate Rule 7(B).


[2]   We affirm.



                                   Facts and Procedural History
[3]   On the evening of April 17, 2016, Gary was socializing with his brother, James

      Gary (“James”), and two of James’s friends, Lavelle Evans (“Evans”) and

      Anon Burnett (“Burnett”). The four men were sitting on a porch outside of

      James’s apartment in Elkhart.


[4]   James routinely openly carried a 9mm semiautomatic pistol in a holster that he

      wore at his side, and was wearing the holstered gun that day. Gary routinely

      carried a bag with clothes and a .44 magnum revolver. Gary had the bag with

      him on April 17, 2016, and the revolver was in his bag that day.


[5]   At some point that evening, Gary, whom James and Anon observed to be

      acting strangely, attempted to take the 9mm pistol from James’s holster. James

      quickly removed the gun from Gary’s reach, re-holstered the gun, and told

      Gary to leave. Gary agreed to leave and called someone to ask for a ride. After




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017   Page 2 of 7
      this, James, whose infant child was inside the apartment, entered the apartment

      to prepare a bottle for the child.


[6]   While James was inside the apartment, Gary drew his revolver from his bag

      and, without any apparent warning, fired his gun at Evans, striking Evans in

      the head. Burnett, who had been looking away from the two men and towards

      a party across the street, felt the disruption of air from the firing of the gun.

      Burnett turned and saw Evans fall from the chair in which he had been sitting,

      and saw Gary running away. James rushed from the apartment, called 911,

      and attempted to pursue Gary, who was running in the direction of James’s and

      Gary’s mother’s home, but Gary escaped.


[7]   Evans died at the scene.


[8]   Around midnight, Gary appeared at the home of a cousin, Wayne Barham

      (“Barham”), and the two men used marijuana together. At some point during

      Gary’s visit, he admitted to Barham that he had shot Evans.


[9]   On the morning of April 18, 2016, Gary contacted his sometime-girlfriend,

      Meghan Zimmerman (“Zimmerman”), and asked her to pick him up from

      Barham’s apartment. Zimmerman did so and transported Gary back to her

      apartment. Zimmerman knew that something had happened at James’s home,

      and eventually persuaded Gary to allow her to take him to the Elkhart Police

      Department. Gary agreed to Zimmerman’s request. Zimmerman took Gary to

      the police station and, after being interviewed at the police station, Gary was

      arrested.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017   Page 3 of 7
[10]   On April 25, 2016, the State charged Gary with Murder.


[11]   Gary waived his right to a jury trial, and the case proceeded to a bench trial on

       August 29 and 30, 2016. At the end of the trial, the court took the matter under

       advisement. On September 23, 2016, the trial court found Gary guilty as

       charged and entered a judgment of conviction against him.


[12]   On October 13, 2016, a sentencing hearing was conducted. At the close of the

       hearing, the trial court reiterated its entry of judgment against Gary, and

       sentenced him to sixty-four years imprisonment, with recommendations that

       Gary receive substance abuse and mental health treatment while incarcerated.


[13]   This appeal ensued.



                                  Discussion and Decision
[14]   Gary raises for our review the sole question of whether the sixty-four-year

       sentence that the trial court imposed upon him was inappropriate. The

       authority granted to this Court by Article 7, section 6 of the Indiana

       Constitution permitting appellate review and revision of criminal sentences is

       implemented through Appellate Rule 7(B), which provides: “The 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.” Under this rule, and as

       interpreted by case law, appellate courts may revise sentences after due

       consideration of the trial court’s decision, if the sentence is found to be

       Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017   Page 4 of 7
       inappropriate in light of the nature of the offense and the character of the

       offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

       798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to

       attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.


[15]   Gary was convicted of Murder, a Felony. The sentencing range for murder

       runs from forty-five to sixty-five years imprisonment, with an advisory term of

       fifty-five years. I.C. § 35-50-2-3(a). Gary was sentenced to a term of sixty-four

       years, one year below the maximum term of imprisonment, and in his appeal

       requests that we conclude that his sentence was inappropriate and asks that we

       revise his sentence downward to the advisory term of fifty-five years.


[16]   Looking first to the nature of the offense, our review of the record discloses that

       Gary was present at a social gathering at his brother James’s home. Shortly

       before committing the offense of Murder, Gary attempted to take James’s gun.

       When told to leave, Gary made a phone call, but remained at James’s home.

       While James was inside tending to his infant child, Gary took out his own gun

       and shot Evans in the head. Burnett, a friend of James and Evans, was close

       enough to feel the disruption of air caused by the gunshot although at the

       moment his attention was directed toward an outdoor party across the street

       from the scene. Gary then fled and, later that night, consumed marijuana and

       admitted to having shot Evans.


[17]   As a result of the shooting, Evans, with whom Gary had no prior conflict or

       quarrel, died; the shooting, then, had no apparent motivation. Moreover, the


       Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017   Page 5 of 7
       shooting resulted in Burnett, who already suffered from post-traumatic stress,

       experiencing increased levels of trauma as a result of the shooting. Gary’s use

       of a firearm posed a risk to numerous other individuals present that day, as

       well.


[18]   We turn now to the nature of Gary’s character. Our review of the record

       discloses that Gary did not finish high school, and experienced disciplinary

       problems while enrolled in school. As a minor, Gary had extensive interactions

       with the juvenile justice system, including two delinquency adjudications for

       Battery, and one delinquency adjudication for Disorderly Conduct. Gary’s

       final contact with the juvenile system resulted in a case being waived into adult

       court jurisdiction, and he was ultimately convicted of Robbery in that case, was

       incarcerated, and failed to successfully complete probation. He subsequently

       committed felony-level offenses of Receiving Stolen Property and Criminal

       Recklessness, and was convicted of misdemeanor-level offenses of Resisting

       Law Enforcement, Illegal Possession of an Alcoholic Beverage, Battery, False

       Informing, and Unlawful Gambling. In numerous of these cases, his probation

       was revoked.


[19]   During the presentencing investigation, Gary admitted to having had a prior

       affiliation with a gang. He was last employed in 2014. Gary acknowledged

       that he had been diagnosed as schizophrenic in 2012, but had discontinued

       medication. Gary further admitted to daily use of marijuana, beginning at age

       fifteen. He also admitted to use of methamphetamine beginning in 2012, and

       stated that the last day he used methamphetamine was the day of his arrest—

       Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017   Page 6 of 7
       one day after the murder of Evans. Gary was afforded addiction treatment

       while incarcerated in 2012, but apparently did not benefit from that treatment.


[20]   In Gary’s favor, he voluntarily surrendered to police. Yet that by itself does not

       persuade us that the nature of his offense and his character are such that the

       trial court’s imposition of a sentence near the statutory maximum was

       inappropriate.


[21]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017   Page 7 of 7
