Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                     May 27 2014, 7:28 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

ELLEN M. O’CONNOR                                 GREGORY F. ZOELLER
Marion County Public Defender Agency              Attorney General of Indiana
Indianapolis, Indiana
                                                  MONIKA PREKOPA TALBOT
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MARQUISE LEE,                                     )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 49A02-1310-CR-869
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Grant W. Hawkins, Judge
                            Cause No. 49G05-1209-MR-62632



                                         May 27, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                               STATEMENT OF THE CASE

          Marquise Lee appeals his conviction for attempted aggravated battery, a Class B

felony, following a bench trial. Marquise raises a single issue for our review, which we

restate as whether the State presented sufficient evidence to support his conviction. We

affirm.

                         FACTS AND PROCEDURAL HISTORY

          Tiara Robertson1 used to date Brandon Lee and was good friends with Brandon’s

sister, Latoya Lee. Latoya is Marquise’s mother.

          Sometime before September of 2012, Tiara left Brandon and began dating Ramon

Gude. This upset Latoya and, on September 5, 2012, Latoya confronted Tiara at Tiara’s

and Ramon’s shared residence. Ramon interceded in this argument and hit Latoya in the

face. Latoya was “mad” and left saying, “I’ll be back.” Transcript at 32.

          On September 7, Latoya returned to Tiara’s and Ramon’s residence. Latoya was

accompanied by Marquise, Billy Young (a cousin of Latoya and Brandon), and a third,

unknown man. Tiara was upstairs when they arrived but rushed downstairs when she

heard Ramon yelling.         Upon arriving downstairs, she observed Marquise attacking

Ramon, who was trying to get inside. Tiara tried to help pull Ramon inside the house

during the attack. Latoya told Tiara to “get out of the way.” Id. at 39.

          Once inside the residence, Ramon “balled up” his body while the three men came

inside to continue their attack. Id. Tiara then observed Billy hand a firearm and clip to

Marquise. But Marquise was not able to load the clip into the firearm. While Tiara

          The Appellant’s Brief refers to Tiara as “Tiara Richardson,” Appellant’s Br. at 2, and the
          1

Appellee’s Brief refers to Tiara as “Tiara Robinson,” Appellee’s Br. at 2. But Tiara named herself as
“Tiara Robertson” during trial. Transcript at 20.
                                                 2
watched Marquise fumble with his clip and firearm, Billy was in her line of sight, and

Latoya was outside. Tiara then heard several gunshots from the direction of the unknown

man and observed that Marquise and Billy “looked . . . surprised.” Id. at 76. Ramon

collapsed, the assailants fled, and Tiara called 9-1-1. A neighbor heard the gunshots,

witnessed the assailants flee the scene, and recognized the female assailant from the

September 5 argument. Ramon died later that day from his gunshot wounds.

      On September 24, the State charged Latoya, Marquise, and Billy2 with murder, a

felony, and conspiracy to commit murder, a Class A felony. The defendants were tried

jointly to the bench on September 9 and 10, 2013. Following the close of the State’s

evidence, the trial court granted the defendants’ motion for involuntary dismissal of the

murder and conspiracy to commit murder charges but kept the case open for

consideration of lesser-included battery charges. Following the trial, the court found

Marquise guilty of attempted aggravated battery, a Class B felony, and sentenced him to

fifteen years.3 This appeal ensued.

                                DISCUSSION AND DECISION

      On appeal, Marquise asserts that the State failed to present sufficient evidence to

show that he committed attempted aggravated battery, a Class B felony. 4                            When

reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or

judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003).

We look only to the probative evidence supporting the judgment and the reasonable

      2
          The third man was never identified or charged.
      3
          The court entered the same conviction and sentence for Latoya and Billy.
      4
          There is no dispute that attempted aggravated battery is a lesser-included offense to murder.
                                                    3
inferences that may be drawn from that evidence to determine whether a reasonable trier

of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there

is substantial evidence of probative value to support the conviction, it will not be set

aside. Id.

       Pursuant to Indiana Code Section 35-42-2-1.5, to demonstrate that Marquise

committed aggravated battery the State needed to show that he “knowingly or

intentionally inflict[ed] injury on a person that create[d] a substantial risk of death or

cause[d]: (1) serious permanent disfigurement . . . .” And one attempts a crime when,

“acting with the culpability required for the commission of the crime, he engages in

conduct that constitutes a substantial step toward commission of the crime.” Ind. Code §

35-41-5-1. On appeal, Marquise asserts that there was no evidence of his intent and that

Ramon’s injuries from Marquise’s acts do not support the judgment.5

       In essence, the trial court concluded that the State had demonstrated that Marquise

intended at least to severely beat Ramon but was interrupted when the unknown man at

the scene murdered Ramon.           And the trial court’s conclusion is supported by the

evidence.    We agree with the State that the evidence shows that Marquise and his

companions intended to inflict the type of injuries on Ramon that are contemplated in the

aggravated battery statute. Appellee’s Br. at 10. The State demonstrated that Marquise

arrived at Ramon’s residence with Latoya less than forty-eight hours after Ramon had

struck Latoya in an argument. Latoya left that argument with the admonition that she




       5
           We need not address the parties’ arguments on accomplice liability because Marquise was an
active participant.
                                                 4
would return, and when she did return, Marquise, Billy, and the unknown man were with

her.

       The men immediately proceeded to attack Ramon. Marquise was the first to

attack him, and the men continued to beat Ramon as Tiara pulled him into the residence

and Ramon “balled up” his body to protect himself. Transcript at 39. Further, at least

two of the men were armed, and Marquise held one of the firearms at the time Ramon

was murdered.

       The State’s evidence sufficiently demonstrates that Marquise intended to inflict

injury to Ramon that would have created a substantial risk of either his death or

disfigurement and that Marquise took a substantial step toward the commission of that

crime. That the attack was brought to an unexpected halt by the unknown man shooting

Ramon does not absolve Marquise of liability for his own conduct.                       Further, it is

irrelevant that the doctor who examined Ramon’s body did not find evidence of blunt

force trauma on Ramon’s body.               Tiara’s testimony demonstrated the severity of

Marquise’s actions, and we will not reweigh her testimony. Accordingly, we affirm

Marquise’s conviction.6

       Affirmed.

VAIDIK, C.J., and BROWN, J., concur.




       6
          Because we affirm Marquise’s conviction, we need not consider his argument that he should
have been convicted instead of a misdemeanor battery. Further, contrary to the State, we do not read the
Appellant’s Brief to raise a “variance” argument. See Appellee’s Br. at 12. Insofar as Marquise intended
to make such an argument, it is waived. Ind. Appellate Rule 46(A)(8)(a).
                                                   5
