Pursuant to Ind.Appellate Rule 65(D),                                          Nov 27 2013, 5:29 am
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:

JEFFREY G. RAFF                                  GREGORY F. ZOELLER
Fort Wayne, Indiana                              Attorney General of Indiana

                                                 JOSEPH Y. HO
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DONTAY MARTIN,                                   )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )    No. 02A05-1303-CR-113
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable John F. Surbeck, Jr., Judge
                              Cause No. 02D05-1209-FA-39


                                      November 27, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                       Case Summary

      Dontay Martin appeals his four attempted murder convictions and his sentence for

those convictions. We affirm.

                                            Issues

      Martin raises two issues, which we restate as:

             I.        whether there is sufficient evidence to support his
                       attempted murder convictions; and

             II.       whether his sentence is inappropriate.

                                            Facts

      In the early morning hours of September 9, 2012, Martin was at a nightclub in Fort

Wayne with two of his fellow gang members, Alfonso Chappell and Traneilous Jackson.

An altercation ensued between Jackson and Jermaine Loyall in which Jermaine was

stabbed in the back.

      An ambulance was summoned for Jermaine. Eric Zeigler of the Fort Wayne Fire

Department arrived at the scene to drive the ambulance to the hospital while Jeromy

Yadon and Diana Lantz treated Jermaine in the back of the ambulance. The ambulance

left for the hospital, and Jermaine’s sisters, Dominic Loyall and Latosha Loyall, followed

the ambulance in a Chevy Impala driven by Dominic’s friend, Lashonda Conwell.

      Martin, Jackson, Chappell, and another man followed the ambulance in Chappell’s

car. Chappell was driving, Jackson was in the front passenger seat, and Martin was in

backseat on the passenger side. Martin instructed Chappell to “follow the f*****g

ambulance right now. Somebody got to f*****g die, they not making it to the hospital.”


                                              2
Tr. p. 156. When Chappell’s car caught up with the Impala, Jackson was armed with his

own Ruger, which could hold sixteen cartridges, and Martin was armed with Chappell’s

Glock 17 with an extended magazine, which was designed to hold thirty-four cartridges.

As Chappell drove alongside the Impala, Jackson and Martin fired at it.                      Then, as

Chappell drove alongside the ambulance, Jackson and Martin fired at it.

          Although no one in the ambulance was shot, Yadon was injured by bullet

fragments and glass shards. As for the occupants of the Impala, Conwell and Dominic

were each shot once and Latosha was shot six times. At least twenty casings from the

Glock were recovered at the intersection where the shooting occurred. Several casings

from the Ruger were also recovered. Eighteen bullet holes were identified in the Impala,

and at least seventeen bullet holes were identified in the ambulance. After the shooting,

Chappell fled until police used stop sticks to disable his car.

          On September 19, 2012, the State charged Martin with four counts of Class A

felony attempted murder relating to Jermaine, Dominic, Latosha, and Conwell, one count

of Class C felony carrying a handgun without a license, one count of Class C felony

battery relating to Yadon, two counts of Class D felony criminal recklessness relating to

Lantz and Ziegler, and one count of Class D felony criminal gang activity. A jury found

Martin guilty as charged.1

          Martin refused to cooperate with the preparation of a presentence investigation

report. At the March 4, 2013 sentencing hearing, the trial court considered the nature of

the offense and Martin’s character, namely his criminal history, as aggravators. The trial

1
    The trial court entered the conviction on the handgun charge as a Class A misdemeanor.
                                                     3
court found no mitigators. The trial court sentenced Martin to forty years on each of the

attempted murder convictions, one year on the handgun conviction, six years on the

battery conviction, two years on each of the criminal recklessness convictions, and two

years on the criminal gang activity conviction. The trial court ordered that the sentences

for attempted murder, battery, and criminal recklessness be served consecutively because

they involved different victims. The trial court ordered that the handgun and criminal

gang activity convictions be served concurrent with the other sentences for a total

sentence of 170 years. Martin now appeals.

                                        Analysis

                             I. Sufficiency of the Evidence

      Martin argues there is insufficient evidence to support his attempted murder

convictions because there is insufficient evidence of his specific intent to kill. When

reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence

nor assess the credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).

We view the evidence—even if conflicting—and all reasonable inferences drawn from it

in a light most favorable to the conviction and affirm if there is substantial evidence of

probative value supporting each element of the crime from which a reasonable trier of

fact could have found the defendant guilty beyond a reasonable doubt. Id.

      “In a prosecution for attempted murder, the State must show a specific intent to

kill.” Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002). “Intent to kill may be inferred

from the nature of the attack and the circumstances surrounding the crime.” Id. The trier



                                             4
of fact may infer intent to kill from the use of a deadly weapon in a manner likely to

cause death or great bodily harm. Id.

       Here, shortly before the shooting, Jackson, Martin’s fellow gang member, was

involved in an altercation with Jermaine, and Jermaine was stabbed. When Martin and

the others left in Chappell’s car, Martin was aggressive and instructed Chappell to

“follow the f*****g ambulance right now. Somebody got to f*****g die, they not

making it to the hospital.” Tr. p. 156. Chappell was instructed to pull alongside the

Impala, at which point Martin and Jackson began shooting at it. When Chappell pulled

alongside the ambulance, Martin and Jackson shot at it. At least twenty casings from the

Glock Martin was armed with were recovered from the intersection where the shooting

occurred. Eighteen bullet holes were identified in the Impala, and at least seventeen

bullet holes were identified in the ambulance. The photographs of the vehicles, which

were admitted into evidence, showed the location of the bullet holes. From this evidence,

a jury could infer Martin’s intent to kill. There is sufficient evidence to support the

attempted murder convictions.

                                        II. Sentence

       Martin challenges only the 160-year sentence for his attempted murder convictions

as being inappropriate. Indiana Appellate Rule 7(B) permits us to revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, we find that

the sentence is inappropriate in light of the nature of the offenses and the character of the

offender. Although Rule 7(B) does not require us to be “extremely” deferential to a trial

court’s sentencing decision, we still must give due consideration to that decision.

                                             5
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and

recognize the unique perspective a trial court brings to its sentencing decisions. Id.

“Additionally, a defendant bears the burden of persuading the appellate court that his or

her sentence is inappropriate.” Id.

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and myriad other factors that come to light in a given

case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),

we may consider all aspects of the penal consequences imposed by the trial court in

sentencing the defendant, including whether a portion of the sentence was suspended.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

       Martin contends that the 160-year sentence is, for all practical purposes, a life

sentence and that a more appropriate sentence for the attempted murder convictions

would be sixty-five years. Neither the nature of the offense nor Martin’s character

warrants the reduction of his sentence.

       Regarding the nature of the offense, after a gang-related altercation at a nightclub

that resulted in a stabbing, Martin instructed Chappell to follow an ambulance and a

                                            6
vehicle associated with the victim. As they approached the vehicles, Martin and Jackson

opened fire from a moving car in the middle of a city street. Dominic and Conwell were

each shot once, and Latosha was shot six times. Further, in addition to endangering

Jermaine, Martin’s conduct endangered the emergency personnel who were tending to

Jermaine’s injuries. Chappell then led police on a chase through the streets of Fort

Wayne. Nothing about the nature of the offense warrants a reduction of the sentence.

        As for his character, twenty-three-year-old Martin had been released from

incarceration only forty-eight hours before the incident. Further, although he refused to

participate in the preparation of a presentence investigation report, the trial court noted at

least four battery adjudications as a juvenile, some of which occurred while in detention,

and convictions for resisting law enforcement and the receipt of a stolen firearm.2 See

Sent. Tr. p. 21. It also appears that Martin first became involved with the criminal justice

system in 2004, evidencing a long history of his disregard for authority.                       Martin’s

character does not warrant reduction of his sentence.

                                              Conclusion

        There is sufficient evidence to support the attempted murder convictions, and

Martin has not established that his sentence is inappropriate. We affirm.

        Affirmed.

CRONE, J., and PYLE, J., concur.




2
  The trial court’s recitation of Martin’s criminal history was based on a previously prepared pre-sentence
investigation report, which is not available for our review.
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