      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                     May 20 2015, 7:00 am
      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                                   ATTORNEY FOR APPELLEE
      Yvette M. LaPlante                                       Gregory F. Zoeller
      Keating & LaPlante                                       Attorney General of Indiana
      Evansville, Indiana                                      Indianapolis, Indiana
                                                               Lyubov Gore
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Tony R. Johnson, Jr.,                                    May 20, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               82A04-1409-CR-425
              v.                                               Appeal from the Vanderburgh
                                                               Circuit Court

      State of Indiana,                                        The Honorable Kelli E. Fink,
                                                               Magistrate
      Appellee-Plaintiff
                                                               Cause No. 82C01-1401-FA-104




      Mathias, Judge.

[1]   Following a jury trial, Tony Johnson (“Johnson”) was convicted in

      Vanderburgh Circuit Court of Class D felony criminal gang activity and Class

      D felony criminal recklessness. On appeal, Johnson claims that the evidence

      was insufficient to support his conviction.

      Court of Appeals of Indiana | Memorandum Decision No. 82A04-1409-CR-425 | May 20, 2015   Page 1 of 8
[2]   We affirm.


                                    Facts and Procedural History

[3]   During the early morning hours of January 25, 2014, Timothy Rice (“Rice”)

      was sitting alone inside a friend’s car parked in a parking lot behind

      Hammerhead Bar in Evansville. Rice was drinking vodka inside the car and

      remained in the car for approximately thirty minutes. Two Evansville police

      officers, Officer James Delano (“Officer Delano”) and Officer Justin Wuertz,

      (“Officer Wuertz”) sat in their police cruiser across the street from the parking

      lot, because it was “an area that whenever the bar lets out where [they] usually

      [had] problems.” Tr. p. 197. Around 2 a.m., the officers observed Johnson and

      two other men, later identified as Torrance Mimms (“Mimms”) and Luther

      Lawton (“Lawton”) approaching the parking lot where Rice’s car was parked.

      Each of the three men withdrew handguns and began to fire at Rice, who had

      exited the vehicle and was walking towards the entrance to the bar. One of the

      bullets passed through Rice, entering at his lower back and knocking him to the

      ground. Rice stood and started to run towards the bar to get help.

[4]   The officers exited their car, drew their guns, and ordered the three men to drop

      their weapons. The three men ran away from the officers, abandoning their

      guns as they fled. Lawton separated from the other two, and Johnson and

      Mimms jumped into a white SUV parked on the street in front of the bar. The

      SUV sped away, and the officers followed it on foot then radioed its description

      and location to dispatch. The SUV was soon stopped by other officers on patrol

      nearby. Johnson and Mimms were identified and arrested. Lawton was also
      Court of Appeals of Indiana | Memorandum Decision No. 82A04-1409-CR-425 | May 20, 2015   Page 2 of 8
      apprehended after he approached the SUV on foot. Meanwhile, Rice was taken

      to the hospital where he underwent surgery and spent seven days in recovery.

[5]   At and around the scene of the shooting, officers discovered four handguns1 and

      twenty-four spent casings and observed damage consistent with gunfire to

      nearby buildings and vehicles. The police also acquired security camera footage

      that captured the shooting.

[6]   On January 27, 2014, Johnson was charged with Class A felony attempted

      murder and Class D felony criminal gang activity. Two days later, the State

      added a charge of Class D felony criminal recklessness. Johnson requested a

      speedy trial, and a jury trial was held from July 28, 2014, to July 30, 2014.2 At

      trial, Detective Crystal Thomas (“Detective Thomas”) with the Evansville

      Vanderburgh County Gang Unit testified that Johnson is part of a local group

      known as 300 Wag Block, formed around 2003 by people who live near 300

      Waggoner Avenue on the south side of Evansville, and that Rice is a member of

      a rival group called Savage Life. Detective Thomas stated that the Evansville

      Police Department became aware of the existence of the 300 Wag Block group

      when they began to receive numerous reports of incidents of violence and

      property damage in the 300 Waggoner Avenue area. Detective Thomas testified

      that police officers investigating the group had observed street fights between

      300 Wag Block and Savage Life where members of the groups yelled things like


      1
          The record indicates that Lawton may have been carrying two guns.
      2
       Johnson’s trial was initially scheduled for April 7, 2014, but was continued several times upon Johnson’s
      motion.

      Court of Appeals of Indiana | Memorandum Decision No. 82A04-1409-CR-425 | May 20, 2015            Page 3 of 8
      “300” or “Savage.” She reported that members of both 300 Wag Block and

      Savage Life use hand signals, nicknames, and tattoos to indicate their affiliation

      with their respective groups.


[7]   Two former members of 300 Wag Block testified that the group began a rivalry

      with Savage Life two or three years prior and that Johnson and Mimms are

      “protectors” within 300 Wag Block. They described a hierarchy within the

      group, including protectors, or people responsible for protecting others in the

      group, and members responsible for handling money earned by those in the

      group.


[8]   The State also introduced recordings of phone calls made by Johnson while

      incarcerated, wherein Johnson referenced a rivalry with Savage Life and Rice’s

      affiliation with Savage Life and indicated that he plans to settle his “beef” with

      Rice “in the street.” Tr. pp. 489-99. Other evidence submitted by the State

      included a photograph of Rice displaying the Savage Life hand signal and a

      video of Johnson and Mimms displaying 300 Wag Block hand signals and

      using the label “Block Boys.” Tr. pp. 511-12.


[9]   The jury found Johnson not guilty of attempted murder and guilty of Class D

      felony criminal gang activity and Class D felony criminal recklessness. Johnson

      filed a Motion to Correct Error challenging his criminal gang activity

      conviction, which the trial court denied.




      Court of Appeals of Indiana | Memorandum Decision No. 82A04-1409-CR-425 | May 20, 2015   Page 4 of 8
[10]   On August 29, 2014, Johnson was sentenced to three years executed in the

       Department of Correction for each of the two convictions, to be served

       concurrently with each other but consecutive to a sentence in another cause.


[11]   Johnson now appeals.

                                        Discussion and Decision

[12]   Johnson contends that the evidence is insufficient to support his criminal gang

       activity conviction. 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 verdict and the reasonable 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 substantial

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

       aside. Id.


[13]   To sustain Johnson’s conviction for criminal gang activity, the State’s evidence

       must have proved beyond a reasonable doubt that Johnson “knowingly or

       intentionally actively participat[ed] in a criminal gang.” See Ind. Code § 35-45-

       9-3. A “criminal gang” is defined as follows:

                [A] group with at least three (3) members that specifically:
                       (1) either:
                                (A) promotes, sponsors, or assists in; or
                                (B) participates in; or



       Court of Appeals of Indiana | Memorandum Decision No. 82A04-1409-CR-425 | May 20, 2015   Page 5 of 8
                       (2) requires as a condition of membership or continued
                       membership; the commission of a felony or an act that would
                       be a felony if committed by an adult or the offense of battery
                       (IC 35-42-2-1).
       I.C. § 35-45-9-1.


[14]   The specific intent element requires the State to prove a nexus between

       Johnson’s alleged gang membership and the charged crimes. See Robinson v.

       State, 730 N.E.2d 185, 195 (Ind. Ct. App. 2000).


[15]   Johnson contends that the evidence is not sufficient to show (1) 300 Wag Block

       is a criminal gang as defined by Indiana Code section 35-45-9-1 or (2) that a

       nexus between the charged crimes and Johnson’s affiliation with the group

       exists. We address each contention in turn.

                                    I. Existence of Criminal Gang

[16]   Johnson argues that “the State failed to prove specific instances wherein 300

       Wag Block promoted, sponsored, assisted, or participated in the commission of

       a felony or required members to commit a felony as a condition of

       membership.” Appellant’s Br. at 6. He contends that no evidence exists that

       “the group promotes violence for any reason other than protection,” only that a

       group of friends and neighbors refer to themselves as “300 Wag Block,” provide

       financial assistance for each other, protect each other, and “generally do not get

       along with a group of guys who call themselves Savage Life.” Id. at 7-8.


[17]   The evidence most favorable to the conviction reveals that law enforcement has

       had numerous encounters with the group known as 300 Wag Block and had

       Court of Appeals of Indiana | Memorandum Decision No. 82A04-1409-CR-425 | May 20, 2015   Page 6 of 8
       observed members of the group fighting with members of Savage Life; that

       police officers observed both Johnson and Mimms, two of the “protectors” in

       300 Wag Block, fire their guns at rival group member Rice; and that Johnson

       was recorded referring to a rivalry with Savage Life. The State also presented

       photographs of Rice displaying a Savage Life hand signal, video of Johnson and

       Mimms displaying 300 Wag Block signals, and testimony from former 300 Wag

       Block members describing a hierarchy within the group. From this evidence,

       the jury reasonably concluded that 300 Wag Group is a group with at least

       three members that promotes, sponsors, assists, requires, or participates in the

       commission of a felony—in this case, the shooting of Rice. We therefore

       conclude that the State presented sufficient evidence to prove that 300 Wag

       Group is a criminal gang.


                                                   II. Nexus

[18]   Johnson next argues that the State failed to provide sufficient evidence to show

       a nexus between the crime and Johnson’s membership in 300 Wag Group. See

       Robinson v. State, 730 N.E.2d at 195. Johnson maintains that the shooting of

       Rice was “reactionary” and not the result of any plan or pressure from other

       members of the group. Appellant’s Br. at 9.


[19]   However, the facts most favorable to the jury’s verdict show that 300 Wag

       Block and Savage Life are rival gangs, that Johnson had known Rice for years

       and knew that he was a member of Savage Life, that Johnson and Mimms were

       “protectors” of 300 Wag Block, and that Johnson was recorded referring to

       Rice as part of the “opps,” or member of a rival gang. Tr. p. 432. The evidence
       Court of Appeals of Indiana | Memorandum Decision No. 82A04-1409-CR-425 | May 20, 2015   Page 7 of 8
       also shows that Johnson, Mimms, and Lawton approached Rice while he was

       alone in a deserted area and that all three men fired guns at Rice repeatedly as

       he fled. The nature of the attack belies Johnson’s claim that it was

       “reactionary” rather than planned. Under these facts and circumstances, the

       evidence was sufficient to demonstrate a nexus between the crime and

       Johnson’s gang affiliation.

                                                  Conclusion

[20]   For all of these reasons, we conclude that the State provided sufficient evidence

       to support Johnson’s conviction for Class D felony criminal gang activity.


[21]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision No. 82A04-1409-CR-425 | May 20, 2015   Page 8 of 8
