MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D), this                           May 25 2017, 9:53 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the purpose                 CLERK
                                                                       Indiana Supreme Court
of establishing the defense of res judicata, collateral                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                       ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                            Curtis T. Hill, Jr.
Brooke Smith                                                 Attorney General of Indiana
Keffer Barnhart LLP
                                                             Caryn N. Szyper
Indianapolis, Indiana
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Dontez Demitri Bryant,                                       May 25, 2017

Appellant-Defendant,                                         Court of Appeals Case No.
                                                             82A01-1701-CR-41
        v.                                                   Appeal from the Vanderburgh
                                                             Superior Court
State of Indiana,                                            The Hon. Robert J. Pigman, Judge
                                                             Trial Court Cause No.
Appellee-Plaintiff.
                                                             82D03-1604-F1-2262




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017              Page 1 of 7
                                          Case Summary

[1]   In April of 2016, Appellant-Defendant Dontez Bryant was sitting and talking

      on an Evansville front porch with Antonio Bushrod, Jr., and two others. At

      some point, Bryant stood as if to leave, but instead drew a handgun,

      approached Bushrod, and shot him once in the chest at close range. The State

      charged Bryant with Level 1 felony attempted murder and Level 5 felony

      possession of a firearm without a license. Following trial, a jury found Bryant

      guilty of attempted murder, and the State dismissed the weapons charge. The

      trial court sentenced Bryant to thirty-five years of incarceration. Bryant

      contends that the State failed to prove that he had the specific intent to kill

      Bushrod and that his sentence is inappropriately harsh. Because we disagree

      with both contentions, we affirm.



                            Facts and Procedural History

[2]   On April 16, 2016, Charles Jones was on the porch of his Evansville home with

      Bushrod and two other persons. At some point, Bryant arrived in his car and

      shook Bushrod’s hand; shortly thereafter, Jones left, leaving Bryant and

      Bushrod on the porch. Jones returned approximately half an hour later when

      he heard a gunshot, and while he did not witness what had occurred, a

      surveillance system caught the shooting from two angles. At some point after

      Jones left, Bryant stood on the porch as if to leave, drew a handgun, walked




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      over to Bushrod, and shot him in the chest. Bushrod fell out of his chair as the

      others on the porch took cover.


[3]   On April 18, 2016, the State charged Bryant with Level 1 felony attempted

      murder and Level 5 felony possession of a firearm without a license. On

      November 3, 2016, the jury found Bryant guilty of attempted murder, and the

      State dismissed the possession of a firearm without a license charge. On

      December 13, 2016, the trial court sentenced Bryant to thirty-five years of

      incarceration. Bryant contends that the State failed to produce sufficient

      evidence to sustain a finding that he intended to kill Bushrod when he shot him

      and that his sentence is inappropriately harsh.


                                Discussion and Decision

                                           I. Intent to Kill
[4]   Bryant contends that the State produced insufficient evidence to establish that

      he intended to kill Bushrod when he shot him in the chest. When reviewing the

      sufficiency of the evidence to support a conviction, we consider only the

      probative evidence and reasonable inferences supporting the verdict. Drane v.

      State, 867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder’s role to assess

      witness credibility and weigh the evidence to determine whether it is sufficient

      to support a conviction. Id. We consider conflicting evidence in the light most

      favorable to the trial court’s ruling. Id. We affirm the conviction unless no




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      reasonable fact-finder could find that the elements of the crime were proven

      beyond a reasonable doubt. Id.


[5]   To convict Bryant of Level 1 felony attempted murder, the State was required

      to prove beyond a reasonable doubt that Bryant, while acting with the specific

      intent to kill another person, engaged in conduct constituting a substantial step

      toward the killing. Ind. Code §§ 35-41-5-1, 35-42-1-1; Blanche v. State, 690

      N.E.2d 709, 712 (Ind. 1998). The heightened requirement of proof of specific

      intent to kill in attempted murder cases is based upon the stringent penalties for

      attempted murder and ambiguities often involved in proving such a charge.

      Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015) (citing Hopkins v. State, 759 N.E.2d

      633, 637 (Ind. 2001)).


[6]   The jury may infer specific intent to kill from “the nature of the attack and the

      circumstances surrounding the crime.” Kiefer v. State, 761 N.E.2d 802, 805

      (Ind. 2002). Intent to kill may be inferred “from the use of a deadly weapon in

      a manner likely to cause death or great bodily injury.” Id. (citation omitted).

      “Further, our supreme court has held that discharging a weapon in the direction

      of a victim is substantial evidence from which the jury could infer intent to kill.”

      Corbin v. State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006) (citing Leon v. State,

      525 N.E.2d 331, 332 (Ind. 1988)). Moreover, where discharge of a firearm is

      concerned, the distance between the defendant and victim is also a relevant

      consideration in determining whether the defendant specifically intended to kill

      the victim. See Richeson v. State, 704 N.E.2d 1008, 1010 (Ind. 1998).




      Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017   Page 4 of 7
[7]   The surveillance footage shows that Bryant draw a handgun, stood up, moved

      in Bushrod’s direction, aimed the gun at Bushrod’s chest, and fired at very

      nearly point-blank range. After shooting Bushrod, Bryant ran to his car and

      drove off. The surveillance video clearly shows Bryant using a deadly weapon

      in a way likely to cause death or serious injury, i.e., deliberately shooting

      Bushrod in the chest from no more than a couple of feet away. From this

      evidence, the jury was entitled to infer the specific intent to kill. Bryant argues

      that the record as a whole fails to establish the specific intent to kill because

      Bushrod did not testify that the conversation leading up to the shooting turned

      “aggressive” or “to fighting[.]” Tr. p. 101. This, however, is an invitation to

      reweigh the evidence, which we will not do. See Drane, 867 N.E.2d at 146.

      Bryant has not established that the State failed to produce sufficient evidence to

      sustain his conviction for attempted murder.


                           II. Inappropriateness of Sentence
[8]   We “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.” Ind.

      Appellate Rule 7(B). “Although appellate review of sentences must give due

      consideration to the trial court’s sentence because of the special expertise of the

      trial bench in making sentencing decisions, Appellate Rule 7(B) is an

      authorization to revise sentences when certain broad conditions are satisfied.”

      Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

      and quotation marks omitted). “[A] person who commits a Level 1 felony (for


      Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017   Page 5 of 7
       a crime committed after June 30, 2014) shall be imprisoned for a fixed term of

       between twenty (20) and forty (40) years, with the advisory sentence being

       thirty (30) years.” Ind. Code § 35-50-2-4(b). As mentioned, the trial court

       sentenced Bryant to thirty-five years of incarceration, or five years more than

       the advisory sentence for Level 1 felony attempted murder.


[9]    The nature of Bryant’s attempted murder is somewhat egregious to the extent

       that it appeared to be premeditated and cold-blooded. Bryant arrived at Jones’s

       house, shook Bushrod’s hand, and engaged him in conversation for almost a

       half hour. Then, Bryant stood as if to leave, drew a firearm, and suddenly shot

       Bushrod in the chest as he sat in a chair. Bryant immediately fled the scene and

       then the jurisdiction; Bryant was eventually apprehended in Milwaukee,

       Wisconsin. According to the surgeon who treated Bushrod, he was “very

       lucky” to be alive and would have to live with the bullet in his chest due to the

       danger of removing it. Tr. p. 120. The nature of Bryant’s offense could

       reasonably justify his enhanced sentence.


[10]   Bryant’s character also justifies an enhanced sentence. Bryant, twenty-three at

       the time of the shooting, had already amassed a somewhat extensive criminal

       record by the time he shot Bushrod. Between 2011 and 2015, Bryant was

       convicted of three felonies and seven misdemeanors, which resulted in

       probation and incarceration. Indeed, Bryant was on probation when he shot

       Bushrod. Bryant was evaluated pursuant to IRAS-CST and found to be a “high

       risk to re-offend.” Appellant’s Confidential App., Vol. II p. 87. Despite

       Bryant’s frequent contacts with the criminal justice system, he has chosen not to


       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017   Page 6 of 7
       reform himself; instead, his crimes have escalated from non-violent offenses to

       attempted murder at the age of twenty-three. Bryant’s character reasonably

       justifies his enhanced sentence. Bryant has failed to establish that his thirty-

       five-year sentence for Level 1 Felony attempted murder is inappropriate in light

       of the nature of his offense and his character.


[11]   We affirm the judgment of the trial court.


       Najam, J., and Riley, J, concur.




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