MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Dec 31 2018, 9:44 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
Karen M. Heard                                          Curtis T. Hill, Jr.
Vanderburgh County                                      Attorney General of Indiana
Public Defender’s Office
                                                        Evan Matthew Comer
Evansville, Indiana                                     Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gerald Duane Lewis,                                     December 31, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1315
        v.                                              Appeal from the
                                                        Vanderburgh Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Michael J. Cox, Magistrate
                                                        Trial Court Cause No.
                                                        82C01-1607-F1-4056



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018                Page 1 of 14
[1]   Gerald Duane Lewis (“Lewis”) appeals his thirty-six-year sentence following

      his guilty plea for Level 1 felony attempted murder.1 On appeal, he raises the

      following restated issues:


                 I. Whether the trial court abused its discretion when it did not
                 recognize certain mitigating factors; and


                 II. Whether, under Appellate Rule 7(B), Lewis’s sentence is
                 inappropriate in light of the nature of the offense and the
                 character of the offender.


[2]   We affirm.2


                                     Facts and Procedural History3
[3]   Lewis did not know Crystal Cash (“Cash”) but, on the afternoon of July 10,

      2016, the two had a “random” encounter at the intersection of North First

      Avenue and West Columbia Street in Evansville, Vanderburgh County,

      Indiana. Appellant’s Conf. App. Vol. II at 83. The two began to chat and Cash,

      who is a transgender woman, invited Lewis to come to the massage parlor that

      she ran out of an office building on North First Street, a location that also




      1
          See Ind. Code §§ 35-42-1-1(1); 34-41-5-1.
      2
        Responding to a request for restitution, the trial court also entered a $76,291.97 civil judgment in favor of
      the victim. Lewis does not appeal that judgment. Tr. Vol. II at 29.
      3
       To establish the facts of this case, we, like the State, cite in part to the probable cause affidavit. Appellant’s.
      Conf. App. Vol. II at 83-84. The probable cause affidavit was attached to the presentence investigation report
      and is also cited by Lewis in his appellant’s brief. Id. at 83-84; Appellant’s Br. at 8-10.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018                       Page 2 of 14
      served as her personal residence. Id. Lewis wore combat boots and an “Israeli

      Christian” shirt with gold fringe and had tattoos on both of his arms. Later

      investigation revealed that Lewis was a member of a “black nationalist hate

      group” known as “Israel United in Christ.” Id. at 43, 68. Initially, Lewis

      appeared to be “very nice,” complementing Cash on her vehicle and asking her

      questions about herself and her job. Id. Once inside the office, Cash showed

      Lewis her business website. Id. at 84. Soon after, Lewis attempted to enter

      restricted areas of the office, which were closed off from the office; he also used

      the restroom. Id. Lewis seemed to be in the restroom for a long time, and

      when he came out, he had “turned into a monster.” Id. Cash fled to her

      bedroom, but Lewis followed her, pulled out a gun, and shot Cash in the face,

      yelling “die, die faggot.” Id. Cash pretended to be dead while Lewis stole all

      forms of her identification, including her passport, several credit cards and the

      keys to Cash’s office. Id. Lewis then left.


[4]   Cash called 911 and informed dispatch that she had been shot. When police

      and medical personnel arrived on the scene, they found Cash lying on the front

      steps of the office building with a gunshot wound on the left side of her face. Id.

      at 83. Cash had difficulty speaking and was unable to provide information to

      investigators. Police followed a trail of blood splatters into Cash’s office and

      later, after obtaining a search warrant, found a “spent F.C. 9 mm Lugar shell

      casing” in Cash’s bedroom. Id. at 83.


[5]   Paramedics transported Cash to Deaconess Hospital in Evansville where she

      was treated for her wound. Id. Investigating officers attempted to speak with

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018   Page 3 of 14
      Cash at the hospital, but she was intubated and unable to speak. Id. Through

      written communications, however, Cash was able to describe Lewis to police.

      That information enabled police to find Lewis and the gun he used to shoot

      Cash. Lewis had no permit for the gun. The police arrested Lewis.


[6]   On July 13, 2016, the State charged Lewis with Level 1 felony attempted

      murder, Level 2 felony robbery resulting in serious bodily injury, and Class A

      misdemeanor carrying a handgun without a license. The advisory sentences for

      the Level 1 and Level 2 counts were thirty years and seventeen and a half years,

      respectively. The State also filed a sentence enhancement alleging that Lewis

      committed the underlying offense of attempted murder while using a firearm.

      In September 2016, at defense counsel’s request, the trial court ordered Lewis to

      submit to a psychological examination to determine his competence to stand

      trial.


[7]   Lewis was first examined by a psychologist, Dr. Frederick Nolen (“Dr. Nolen”)

      on September 27, 2016. Dr. Nolen diagnosed Lewis with provisional

      dissociative identity disorder, major neurocognitive disorder, suspected child

      physical abuse, suspected child sexual abuse, post-traumatic stress disorder, and

      alcohol use disorder. Id. at 33. Dr. Nolen concluded that Lewis was not

      competent to stand trial at that time because his dissociative identity disorder

      and major neurocognitive disorder would make it impossible for him to

      mentally track the proceedings, understand their significance, and participate in

      his own defense. Id. at 33-34.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018   Page 4 of 14
[8]   Lewis was examined by Dr. David Cerling (“Dr. Cerling”) on October 14, 2016

      and November 3, 2016. Dr. Cerling determined that Lewis was able to

      “identify the charges against him as including attempted murder, robbery, and

      having an unlicensed handgun.” Id. at 40. Lewis told Dr. Cerling that he could

      not recall the incident leading to the charges and said that the incident as

      described to him was “totally inconsistent with his behavior.” Id. at 41. While

      Dr. Cerling concluded that it appeared “likely that [Lewis] does have a

      significant mental illness,” he stopped short of offering a diagnosis, noting “the

      defendant displayed no clear indications of a thought disorder.” Id. at 42. Dr.

      Cerling observed that “the defendant is endorsing symptoms that are also quite

      atypical and inconsistent with psychotic disorders.” Id. Dr. Cerling concluded,

      “It appears highly probable . . . that [Lewis] has an age-appropriate factual and

      rational understanding of court principles and procedures relevant to the

      charges he is facing in court. He understands the basis of the charges against

      him, although he states he has no recollection of the reported incident.” Id.


[9]   Lewis filed a request for a sanity evaluation. The trial court granted the request

      and ordered Lewis to undergo a sanity evaluation with Dr. Cerling. Following

      his additional assessments and interview of Lewis, Dr. Cerling reiterated that

      Lewis was “overreporting symptoms” and stated that he was unable to issue a

      definitive diagnosis. Id. at 44. Dr. Cerling wrote, “In light of potential

      overreporting of symptoms as well as reported amnesia for the events, any

      definitive opinion regarding his ability to perceive wrongfulness at the time of

      the event cannot be reached.” Id. at 44. In March 2017, the trial court


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018   Page 5 of 14
       determined that Lewis was not competent to stand trial and temporarily stayed

       the proceedings. Id. at 45. Lewis was then transported to the Logansport State

       Hospital where he received inpatient mental health treatment. Id. at 72.


[10]   On September 27, 2017, psychologist Dr. Megan O’Grady (Dr. O’Grady”)

       examined Lewis and issued a report finding that Lewis was competent to stand

       trial. Id. at 72. Dr. O’Grady reported that Lewis did not appear to meet the

       criteria for the “previous diagnoses [by Dr. Nolen] of Dissociative Identity

       Disorder, Major Neurocognitive Disorder Due to TBI, and Posttraumatic Stress

       Disorder. Id. at 77. She also concluded that a more precise diagnosis was not

       possible because, “[w]hile hallucinations and delusions are typical features of

       Schizophrenia, there are a number of factors that do argue against such a

       diagnosis, such as the discrepancy between [Lewis’s] self-report and

       observations by others, a course of illness that is inconsistent with that which is

       typically seen in Schizophrenia, and multiple recent test scores suggesting

       exaggeration of symptoms.” Id.


[11]   On October 5, 2017, after the trial court determined that Lewis was competent

       to stand trial, he was transported to the Vanderburgh County Jail. On February

       14, 2018, Lewis pleaded guilty to Level 1 felony attempted murder, and the

       State agreed to dismiss the remaining two counts and the sentencing

       enhancement. The plea agreement was open regarding sentencing but

       contained the question, “Are you aware that the maximum possible sentence in

       this case is 40 years and the minimum possible sentence is 20 years with a



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018   Page 6 of 14
       possible fine of up to $10,000?” Appellant’s Conf. App. Vol. II at 63. Lewis

       marked “yes” to this question and signed the plea agreement. Id.


[12]   The trial court accepted Lewis’s plea. A sentencing hearing was held in May

       2018, during which the trial court considered Lewis’s PSI, a letter filed by Cash,

       comments of Lewis, and reports of the psychologists who had performed the

       mental health evaluations. At the close of arguments, the trial court made the

       following sentencing statement:


               Upon that conviction, the Court does note that there are
               mitigating and aggravating factors. The Court does acknowledge
               that the defendant has no criminal history, and that he has expressed
               his remorse and accepted his responsibility; however, the Court does
               not find that the crime occurred under circumstances unlikely to
               reoccur, nor does the Court find that the defendant acted under
               strong provocation. I don’t know, and I don’t know that anyone
               here in the Courtroom knows, why the defendant acted as he did,
               but the result of his actions are that we have a victim who has
               been significantly harmed and injured, and the injury and harm
               to the victim are much greater than the elements necessary to
               prove the commission of the offense. What amounts to a
               completely unprovoked shooting of the victim in the face, which
               resulted in the victim losing much of the use of her bone and
               muscles in her face, and that has caused innumerable issues for
               the victim just to chew her food or to speak, among other things.
               The Court does not find any grounds tending to excuse or justify
               this crime but, again, the Court did consider the defendant is
               pleading guilty, and thereby saving the State valuable time and
               resources. The Court finds the aggravating circumstances do outweigh
               the mitigating, and the Court now sentences [Lewis] in Count I to
               the Indiana Department of Correction for a period of thirty-six
               (36) years, that sentence is to be served executed.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018   Page 7 of 14
       Sentencing Tr. at 25-26 (emphasis added). Lewis now appeals his sentence.


                                      Discussion and Decision

                                        I. Mitigating Factors
[13]   Lewis contends that the trial court abused its discretion during sentencing when

       it did not consider certain mitigating circumstances. Sentencing decisions rest

       within the sound discretion of the trial court and are reviewed only for an abuse

       of discretion. Green v. State, 65 N.E.3d 620, 635 (Ind. Ct. App. 2016) (citing

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)), trans. denied (2017). “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. at 635-36 (quoting Anglemyer,

       868 N.E.2d at 490). A trial court may be found to have abused its sentencing

       discretion by: (1) failing to enter a sentencing statement; (2) entering a

       sentencing statement that cites reasons unsupported by the record; (3) entering a

       sentencing statement that omits reasons that are clearly supported by the record

       and that were advanced by the defendant; and (4) entering a sentencing

       statement in which the reasons given are improper as a matter of law. Id. at

       636.


[14]   On appeal, Lewis claims that the trial court abused its discretion during

       sentencing when it did not give sufficient consideration to Lewis’s: (1) lack of

       criminal history; (2) decision to plead guilty; and (3) expression of remorse.

       Appellant’s Br. at 13-14. He also contends that the trial court abused its


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018   Page 8 of 14
       discretion when it “did not even mention Lewis’s mental illness” as a mitigating

       circumstance. Id. at 12.


[15]   The trial court is not required to find mitigating factors, nor is it obligated to

       accept as mitigating each of the circumstances proffered by the defendant.”

       Green, 65 N.E.3d at 636. “The relative weight or value assignable to reasons

       properly found, or those that should have been found, is not subject to review

       for abuse of discretion.” Id. A trial court abuses its discretion in sentencing if it

       overlooks “substantial” mitigating factors that are “clearly supported by the

       record.” Id. (citing Anglemyer, 868 N.E.2d at 491). The burden is on the

       defendant to establish that the mitigating evidence is both significant and clearly

       supported by the record. Id.


[16]   We disagree with Lewis’s contention that the trial court did not give sufficient

       consideration to his: (1) lack of criminal history; (2) decision to plead guilty;

       and (3) expression of remorse as mitigating circumstances. At the close of the

       sentencing hearing, the trial court specifically identified these three mitigating

       circumstances, discussed aggravating circumstances, and specifically found that

       the “aggravating circumstances do outweigh the mitigating” circumstances.

       Sentencing Tr. at 26 (emphasis added). We may not consider whether a trial

       court abused its discretion when it determined the relative weight or value

       assignable to reasons properly found, or those that should have been found. See

       Green, 65 N.E.3d at 636. We find no abuse of discretion regarding these three

       factors.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018   Page 9 of 14
[17]   Likewise, we find no abuse of discretion regarding the trial court’s handling of

       Lewis’s mental health history. Lewis argues that the trial court abused its

       discretion when it “did not even mention Lewis’s mental illness” as a mitigating

       circumstance. Appellant’s Br. at 12. Three psychologists examined Lewis

       during the State’s investigation and prosecution. Dr. Cerling reported that

       Lewis’s “responses on the M-FAST and the SlMS reflect a pattern of reporting

       symptomatology that is inconsistent with typical presentations for a psychotic

       disorder, an affective disorder, or some type of neurologic impairment, such as

       amnesia.” Appellant’s Conf. App. Vol. II at 41. Doctors Cerling and O’Grady

       determined that Lewis had overreported his symptoms, and therefore, they

       were unable to conclusively diagnose Lewis’s condition or conditions. Id. at 44.

       The only nexus presented to show a connection between Lewis’s mental illness

       and his having committed attempted murder was presented by defense counsel

       when, during the sentencing hearing, he said that Lewis’s attack was triggered

       by sexual contact with Cash. Tr. Vol. II at 19. This statement, however, is mere

       conjecture, and Lewis provided no evidence to substantiate that claim. Id. at

       18-19. The evidence does not establish that Lewis’s history of mental illness

       was in any way connected to his decision to attack Cash.


[18]   The trial court was well aware of Lewis’s mental health history and ordered

       numerous mental health evaluations of Lewis to determine whether he knew

       what he was doing when he committed the crime and whether he was

       competent to stand trial. A “trial court is not required to find mitigating factors,

       nor is it obligated to accept as mitigating each of the circumstances proffered by


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018   Page 10 of 14
       the defendant.” Green, 65 N.E.3d at 636. The trial court did not abuse its

       discretion in its consideration of mitigating circumstances.


                                    II. Inappropriate Sentence
[19]   Lewis also contends that his thirty-six-year executed sentence is inappropriate.

       Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence

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

       [c]ourt finds that the sentence is inappropriate in light of the nature of the

       offense and the character of the offender.” Our Supreme Court has explained

       that the principal role of appellate review should be to attempt to leaven the

       outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008); Yoakum v. State, 95 N.E.3d 169, 176

       (Ind. Ct. App. 2018), trans. denied. We independently examine the nature of

       Lewis’s offense and his character under Appellate Rule 7(B) with substantial

       deference to the trial court. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015).

       “[W]e 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.’” Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.

       2013), trans. denied. Whether a sentence is inappropriate ultimately depends

       upon “the culpability of the defendant, the severity of the crime, the damage

       done to others, and a myriad of other factors that come to light in a given case.”

       Cardwell, 895 N.E.2d at 1224. Lewis bears the burden of persuading us that his

       sentence is inappropriate in light of the nature of the offense and his character.

       Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018   Page 11 of 14
[20]   “The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation.” Croy v. State, 953

       N.E.2d 660, 664 (Ind. Ct. App. 2011). Lewis admits that “[t]here is no doubt

       that the nature of the offense is very serious” and that “[t]he crime of attempted

       murder is extreme.” Appellant’s Br. at 15. The Indiana General Assembly

       recognized these factors when it established a sentencing range of twenty to

       forty years with an advisory sentence of thirty years. Id. Lewis contends that

       he “is not arguing that the offense is not serious but rather that thirty-six years,

       which is six years over the advisory, is inappropriate. Id. We are not

       persuaded.


[21]   Lewis pleaded guilty to attempted murder under the following circumstances.

       Lewis randomly met Cash on the street, the two chatted in a friendly way, and

       Lewis went willingly with Cash to her office building, which also served as her

       home. Lewis used the restroom. Cash said that Lewis seemed to be in the

       restroom for a long time, and that when he came out, he had “turned into a

       monster.” Appellant’s Conf. App. Vol. II at 84. Cash fled to her bedroom, but

       Lewis followed her, pulled out a gun, and shot Cash in the face, yelling “die,

       die faggot.” Id. Lewis left Cash for dead while he stole all forms of ID,

       including her passport, several credit cards and the keys to Cash’s office. Id.


[22]   Cash was the victim of an unprovoked shooting. Sentencing Tr. at 84-85. She

       was hospitalized for about one month, underwent two emergency surgeries,

       had a complete blood transfusion, had her jaws wired shut, was placed on a

       breathing machine, and had a feeding tube inserted into her abdomen.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018   Page 12 of 14
       Appellant’s Conf. App. Vol. II at 99. Cash suffered lasting physical damage

       including partial loss of her tongue, jaw bone and teeth, nerve damage, and

       pain. Id. She has developed a speech impediment and has a small hole in the

       left side of her face that, as of the sentencing hearing, had not healed. Id.

       Lewis’s actions resulted in a “victim who has been significantly harmed and

       injured, and the injury and harm to the victim are much greater than the

       elements necessary to prove the commission of the offense.” Id. at 84. The

       nature of the offense does not warrant a revision of Lewis’s sentence.


[23]   Regarding his character, Lewis contends that his sentence is inappropriate

       because he suffers from mental health issues, has no criminal history, showed

       remorse, and pleaded guilty. The State counters that whatever good character

       Lewis has is outweighed by his membership in “Israel United in Christ,” a

       “black nationalist hate group.” Id. at 43, 68. When Lewis shot Cash, he

       shouted, “die, die faggot.” Id. at 13. Lewis wanted to kill Cash. Id. at 83.

       During the sentencing hearing, Lewis told the trial court that he had no

       knowledge of Cash’s gender identity when he shot her and said that his use of

       the word “faggot” was “just an exaggeration.” Sentencing Tr. at 25. However,

       defense counsel admitted that Lewis’s membership in “Israel United in Christ”

       may have played a role in the shooting, saying, “Perhaps the teachings of that

       group planted a seed, a negative seed, toward transgendered individuals in my

       client’s brain, but his actions were not at the direction or involved with that

       group at all.” Id. at 21. Furthermore, Lewis’s use of the homophobic slur

       suggests that he had knowledge of Cash’s sexual and gender identities at the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018   Page 13 of 14
       time of the shooting. The record establishes that Lewis committed a targeted

       act of violence. We do not believe that Lewis’s character warrants a revision of

       his sentence.


[24]   Our task on appeal is not to determine whether another sentence might be more

       appropriate; rather, the inquiry is whether the imposed sentence is

       inappropriate. Barker, 994 N.E.2d at 315. Lewis has failed to carry his burden

       of establishing that his sentence is inappropriate in light of the nature of the

       offense and his character.


[25]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018   Page 14 of 14
