MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Jan 14 2019, 9:21 am

court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
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
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Appellate Division                                       Attorney General of Indiana
Office of the Public Defender
                                                         Evan Matthew Comer
Crown Point, Indiana                                     Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andre Thomas Scott,                                      January 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1195
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Clarence D.
Appellee-Plaintiff.                                      Murray, Judge
                                                         Trial Court Cause No.
                                                         45G02-1601-MR-1



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019                    Page 1 of 17
[1]   Andre Thomas Scott appeals his conviction and sentence for attempted robbery

      as a level 2 felony. He raises three issues which we revise and restate as:


            I.    Whether the evidence is sufficient to sustain his conviction;

           II.    Whether the trial court abused its discretion in sentencing him;
                  and

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

      We affirm.


                                      Facts and Procedural History

[2]   In July 2015, Elandra Barron was in a relationship with Antoine Scott

      (“Antoine”). On July 15, 2015, Barron saw Antoine at her cousin’s house

      drinking with people outside. Barron told Antoine that she did not want to see

      him anymore. Antoine “smacked [Barron] on the back of [her] head and called

      [her] a B because [she] had [her] legs open.” Transcript Volume IV at 16.

      Barron “got up and told him” not to put his hands on her, and Antoine

      punched her in the face. Id. Barron’s brother, O’Bryan Brown, “got in

      between” Antoine and Barron and said, “bro, don’t even, don’t be on that.” Id.

      at 17. Antoine said, “get the f--- out of my face.” Id.


[3]   Barron went in the house while others tried to stop Antoine from entering the

      house, but Antoine was “swinging on everybody outside.” Id. Barron grabbed

      a knife, and told Antoine who had followed her to “get away from” her or she

      was going to stab him. Id. at 16. Antoine told Barron that she did not “have

      the balls and spit in [her] face.” Id. Barron and Antoine “got to fighting again,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 2 of 17
      and [she] was swinging the knife, and in the process [Antoine] got stabbed.” Id.

      At that time, Brown and others were in the kitchen with Barron. The others in

      the kitchen told Barron to “just get in [her] car and go because he wouldn’t

      leave,” and they could not “fight him off.” Id. Antoine “hauled off and

      punched” Brown and told him he did not want anybody touching him. Id.

      Barron tried to obtain her keys, go outside, and enter her car, but she dropped

      her keys. Antoine took her keys and would not return them. “[E]verybody was

      trying to talk to [Antoine] like, just give her her keys so she can go.” Id. at 17.


[4]   Brown took Barron to Methodist Hospital where Antoine’s friend, Lothar

      Sickles, was already in the waiting room. Sickles approached Barron and told

      her that she almost killed Antoine and that it was her fault. Brown “got in

      between” Sickles and Barron and told him “he shouldn’t be putting his hand on

      her, so she defended herself.” Id. at 18. Sickles said, “one phone call, that’s all

      it takes.” Id. Hospital security then told Sickles that he had to go sit down.


[5]   That same day, Tia Thompson, a paramedic, received a dispatch and found

      Brown unresponsive in an alley about two blocks from Methodist Hospital with

      blood coming from his nose and mouth. A person at the scene told Thompson

      that Brown had been jumped by two people. Thompson transported Brown to

      Methodist Hospital where he was on life support and airlifted to Christ

      Advocate Hospital in Illinois. As Barron was leaving Methodist Hospital, she

      saw Sickles, Clarence White, and Scott in a truck. On July 16, 2015, Brown

      was removed from life support and died. An autopsy revealed the presence of a

      large subdural hemorrhage covering almost the entire left half of Brown’s brain.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 3 of 17
      The medical examiner determined that Brown died of cranial cerebral injuries

      due to blunt force impacts to the head.


[6]   A police investigation revealed that Sickles called Scott to tell him that his

      brother, Antoine, had been in a fight involving Brown and had been injured.

      Police also obtained security video showing two individuals later identified as

      White and Scott chase Brown down an alley. The video showed that White

      caught up with Brown and punched him, appearing to knock him unconscious.

      It also shows that Scott then stomped on Brown, searched his pockets, struck

      him, searched him again, picked him up and threw him, and kicked him.


[7]   On January 28, 2016, the State charged Scott with: Count I, murder; Count II,

      murder in perpetration of robbery; Count III, attempted robbery as a level 2

      felony; Count IV, aggravated battery as a level 3 felony; and Count V,

      involuntary manslaughter as a level 5 felony.


[8]   On January 29, 2018, and February 2, 2018, the court held a jury trial. The

      jury found Scott not guilty of murder in perpetration of a robbery and guilty of

      involuntary manslaughter as a level 5 felony, attempted robbery as a level 2

      felony, and aggravated battery as a level 3 felony.


[9]   In March 2018, the court held a sentencing hearing. The prosecutor asserted

      that the presentence investigation report (“PSI”) indicated that Scott denied any

      affiliation with a gang and that the State had witnesses that would show Scott

      was a gang member. Gary Police Detective Samuel Abegg testified that he

      heads up the gang unit, that Scott’s name had come up several times over the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 4 of 17
       years in connection with a gang that calls itself the Bottom Side Crew or the

       Dollar Boys. He testified that Scott is a member or an individual who

       associates with that particular crew. He described the hand symbol associated

       with the gang, examined three photographs, and testified that Scott was in the

       three photographs. The court admitted the three photographs over Scott’s

       objection. Detective Abegg testified that Scott was doing the symbol he had

       just demonstrated in the first photograph, that people were throwing up gang

       signs in the second photograph, and that Scott was doing the same gesture in

       the third photograph.


[10]   The prosecutor asserted that Scott had been incarcerated in the Lake County

       Jail for over 600 days and that during his incarceration he had accumulated a

       “55 page list of infractions that have gone wrong” including cutting off his

       wristband, refusing to lock down, cursing and harassing staff by using a racial

       slur, stealing a tablet, attempting to jam a plastic item in his door to prevent it

       from closing, fighting, threatening people, and inciting a riot. Transcript

       Volume VI at 24. The trial court admitted a fifty-five page document including

       disciplinary records over Scott’s objection. Scott apologized to Brown’s family

       for the role he had in the incident and stated that he never intended to kill

       Brown.


[11]   The court vacated the judgment of conviction for Counts I and IV based on

       double jeopardy and affirmed the judgment of conviction on Count III,

       attempted robbery as a level 2 felony. It found that Scott had expressed sincere



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 5 of 17
remorse for his crime as a mitigating circumstance. The court found the

following aggravating circumstances:


        1. [Scott] has a history of misdemeanor convictions.

        2. [Scott] was on bond, house arrest, and on ICU monitor in
        Cause No. 45G02-1504-F1-00002 at the time of the commission
        of the offense.

        3. The Court finds the nature and circumstances of the crime to
        be a significant aggravating factor in that [Scott] chased, battered
        and attempted to rob the victim in broad daylight in an alley in
        midtown Gary. The victim was left for dead and in fact did die
        the following day after being airlifted to a hospital in Chicago.
        The victim suffered severe hemorrhaging and swelling to the
        brain. This was an act of revenge on the part of [Scott] who was
        under the mistaken belief that the victim had something to do
        with an alleged act of violence upon his brother.

        4. The victim was prostrate in the street and unconscious at the
        time [Scott] kicked, beat, and attempted to rob him.

        5. [Scott] has numerous prior contacts with the criminal justice
        system involving arrests for violent offenses.

        6. [Scott] has had past gang involvement.

        7. [Scott] had numerous infractions while incarcerated in Lake
        County Jail, over 55 pages of reports.

        The Court believes [Scott] to be possessed of a very violent
        nature and depraved moral character.


Appellant’s Appendix Volume II at 199-200. The court sentenced Scott to

twenty-seven years with two years suspended to probation.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 6 of 17
                                                       Discussion

                                                              I.


[12]   The first issue is whether the evidence is sufficient to sustain Scott’s conviction.

       When reviewing claims of insufficiency of the evidence, we do not reweigh the

       evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

       817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable

       inferences therefrom that support the verdict. Id. The conviction will be

       affirmed if there exists evidence of probative value from which a reasonable jury

       could find the defendant guilty beyond a reasonable doubt. Id.


[13]   The offense of robbery is governed by Ind. Code § 35-42-5-1, which provided at

       the time of the offense that “[a] person who knowingly or intentionally takes

       property from another person or from the presence of another person: (1) by

       using or threatening the use of force on any person; or (2) by putting any person

       in fear; commits robbery, a Level 5 felony,” and the offense is a level 2 felony

       “if it results in serious bodily injury to any person other than a defendant.”1 An

       attempt is defined by Ind. Code § 35-41-5-1, which provides in part that “[a]

       person attempts to commit a crime when, acting with the culpability required

       for commission of the crime, the person engages in conduct that constitutes a

       substantial step toward commission of the crime.” “An attempt to commit a




       1
           Subsequently amended by Pub. L. No. 202-2017, § 25 (eff. July 1, 2017).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 7 of 17
       crime is a felony or misdemeanor of the same level or class as the crime

       attempted.” Ind. Code § 35-41-5-1.


[14]   Scott argues that there was no indication of any intent to rob Brown until all of

       the injuries had been inflicted on him. He asserts that the lack of a causal

       connection between the robbery and the serious bodily injury means that there

       was not sufficient evidence to convict him of a level 2 felony. He requests that

       we reverse his conviction and remand with instructions to enter a conviction of

       attempted robbery as a level 5 felony and resentence him accordingly.


[15]   The State argues that a defendant’s conviction for level 2 felony robbery does

       not turn on the precise order in which the component events of his crime

       occurred. It asserts that “[i]rrespective of whether [Brown] was last conscious

       before or after Scott began searching his pockets, he was still alive at the time

       Scott used force to attempt a taking, and the injuries that eventually claimed his

       life were the cumulative result” of the harm inflicted by Scott and White during

       the attempted robbery. Appellee’s Brief at 15-16. The State also contends that

       Scott’s attempt to rob Brown and the injuries that led to his death occurred as

       part of a single, continuous event.


[16]   In Minniefield v. State, 539 N.E.2d 464 (Ind. 1989), reh’g denied, the Indiana

       Supreme Court addressed a similar argument. In that case, Michael Guiden

       was exiting his car when he was accosted by Nathan Minniefield and Calvin

       Hill and ordered at gunpoint to lie down on the front seat. 539 N.E.2d 464 at

       465. “Guiden was searched and relieved of the contents of his pockets,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 8 of 17
       including his wallet, money, some betting slips, and other papers.” Id.

       “Guiden then was ordered to get into the back seat.” Id. Minniefield and Hill

       drove away with Guiden in the back seat. Id. A short time later, Guiden

       escaped by jumping from the moving car and suffered injuries in the process.

       Id.


[17]   On appeal from a conviction of robbery as a class A felony, Hill argued that the

       evidence was insufficient because the robbery had been completed by the time

       the victim sustained his injuries by jumping from the moving car. Id. at 466-

       467. Hill maintained that the victim’s injuries did not result from the robbery,

       which consequently could not be elevated to a class A felony. Id. at 467. The

       Indiana Supreme Court held:


               His contention is clearly without merit. Aggravation by reason
               of resulting injury does not depend upon when a crime begins or
               ends, but rather depends upon the causation of the injury.
               Indiana Code § 35-42-5-1 states that robbery is “a Class A felony
               if it results in serious bodily injury to any person other than a
               defendant.” Regardless of the intent of the perpetrator, if the
               injury occurs as a consequence of the conduct of the accused, the
               offense is regarded as a Class A felony. Stark v. State (1986), Ind.,
               489 N.E.2d 43.


               The injuries here resulted from the victim’s escape from the
               robbers; but for the robbery, there clearly would have been no
               injury. The evidence was sufficient to support the conviction of
               robbery as a Class A felony.


       Id. at 467.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 9 of 17
[18]   To the extent Scott cites Birch v. State, 569 N.E.2d 709 (Ind. Ct. App. 1991), we

       find that case distinguishable. In Birch, the defendant grabbed the victim, threw

       her into an alley, pulled out a knife, and demanded all of her money. 569

       N.E.2d at 710. After she gave him her money, the defendant slapped her in the

       back of the head and said “Give me some pussy.” Id. She refused, and he

       proceeded to attack her. Id. During the struggle, the victim’s hands and throat

       were cut. Id. On appeal, another panel of this Court addressed the defendant’s

       argument that the evidence was insufficient to sustain his conviction for robbery

       as a class A felony because the victim did not sustain serious bodily injury as a

       result of the robbery, but as a result of an attempted rape. 569 N.E.2d at 712.

       This Court ultimately held that “[s]ince the victim’s serious bodily injury was

       the result of the attempted rape and not the robbery, defendant could not be

       convicted of robbery as a Class A felony.”2 Id.


[19]   Unlike in Birch in which the injuries occurred after the victim had given up the

       money, the record reveals that Scott struck Brown contemporaneously with his

       attempted robbery. The video reveals that Scott struck Brown at approximately

       4:50:04, stomped on Brown at approximately 4:50:11, searched Brown’s

       pockets beginning at approximately 4:50:12, struck him at approximately




       2
        Judge Staton dissented, stated that the majority misinterpreted the holding in Minniefield, and asserted that
       he would affirm Birch’s conviction for robbery as a class A felony. See Birch, 569 N.E.2d at 713 (Staton, J.,
       dissenting).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019                  Page 10 of 17
       4:50:15, searched him again, picked him up and threw him at approximately

       4:50:20, and kicked him at approximately 4:50:22.


[20]   Based upon our review of the record, we conclude that the State presented

       evidence of a probative nature from which a trier of fact could find beyond a

       reasonable doubt that Scott committed the offense of attempted robbery as a

       level 2 felony.


                                                         II.


[21]   The next issue is whether the trial court abused its discretion in sentencing

       Scott. We review the sentence for an abuse of discretion. Anglemyer v. State,

       868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. 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. A trial court abuses its discretion if it:

       (1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing

       statement that explains reasons for imposing a sentence—including a finding of

       aggravating and mitigating factors if any—but the record does not support the

       reasons;” (3) enters a sentencing statement that “omits reasons that are clearly

       supported by the record and advanced for consideration;” or (4) considers

       reasons that “are improper as a matter of law.” Id. at 490-491. If the trial court

       has abused its discretion, we will remand for resentencing “if we cannot say

       with confidence that the trial court would have imposed the same sentence had

       it properly considered reasons that enjoy support in the record.” Id. at 491.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 11 of 17
       The relative weight or value assignable to reasons properly found, or those

       which should have been found, is not subject to review for abuse of discretion.

       Id.


[22]   Scott appears to argue that the trial court abused its discretion with respect to

       finding the nature and circumstances of the offense as an aggravating

       circumstance. He asserts that the trial court “failed to recognize the existence

       of sudden heat when describing the nature of the offense.” Appellant’s Brief at

       12. He also argues that the serious injuries and eventual death suffered by the

       victim constitute the element that elevated the offense to a level 2 felony, and an

       element of a crime may not be used as an aggravating factor. He also contends

       that the trial court improperly considered his past gang involvement.


[23]   The State argues that the trial court properly considered the violent nature of

       Scott’s crime as an aggravating factor and points out that death of a victim is

       not an element of robbery as a level 2 felony. It also asserts that it presented

       substantial evidence that Scott was a member of a gang at the time of the

       offense and the record supported the trial court’s finding that Scott was

       affiliated with a gang. It contends that, even if the trial court improperly

       identified aggravating circumstances, any error was harmless.


[24]   A material element of a crime may not be used as an aggravating factor to

       support an enhanced sentence. McElroy v. State, 865 N.E.2d 584, 589 (Ind.

       2007). However, when evaluating the nature of the offense, the trial court may

       properly consider the particularized circumstances of the factual elements as


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 12 of 17
       aggravating factors. Id. See also Ind. Code § 35-38-1-7.1 (“In determining what

       sentence to impose for a crime, the court may consider the following

       aggravating circumstances . . . the harm, injury, loss, or damage suffered by the

       victim of an offense was . . . significant; and . . . greater than the elements

       necessary to prove the commission of the offense.”).


[25]   In its sentencing order, the court found the “nature and circumstances of the

       crime to be a significant aggravating factor” and detailed the nature and

       circumstances. Appellant’s Appendix Volume II at 199. We conclude that the

       court considered the injuries not as material elements of the crime or sentencing

       enhancement but as the nature and circumstances of the offense.

       Consequently, we cannot say that the trial court abused its discretion. See

       Caraway v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011) (holding that the

       trial court did not abuse its discretion by considering the nature and

       circumstances of the offense as an aggravator under Ind. Code § 35-38-1-7.1

       where the victim was shot seven times), trans. denied; Settles v. State, 791 N.E.2d

       812, 814-815 (Ind. Ct. App. 2003) (holding that facts evidencing the particular

       brutality of an attack may be considered as an aggravating circumstance when

       sentencing a defendant for aggravated battery and concluding that the trial

       court did not improperly consider the severity of the victim’s injuries as an

       aggravator).


[26]   With respect to the aggravating circumstance that Scott had gang involvement,

       we have previously observed:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 13 of 17
               [C]ases where gang membership has been found to be a valid
               aggravator fall generally into one of two categories: (1) the
               instant offense is linked to a defendant’s gang membership, see,
               e.g., Groves v. State, 787 N.E.2d 401 (Ind. Ct. App. 2003) (finding
               consideration of gang membership to be proper aggravator in
               case where underlying offense was murder of rival gang
               member)[, trans. denied]; or (2) the defendant’s gang membership
               is contemporaneous or close in time to the instant offense, see,
               e.g., Jackson v. State, 697 N.E.2d 53 (Ind. 1998) (considering
               defendant’s current gang membership as an aggravating factor).


       Carmona v. State, 827 N.E.2d 588, 597 (Ind. Ct. App. 2005).


[27]   The State presented evidence of Scott’s gang affiliation through the testimony of

       Detective Abegg and three photographs. Detective Abegg mentioned the gang

       that calls itself the Bottom Side Crew or the Dollar Boys and testified that Scott

       “is a member or an individual that associates with that particular crew.”

       Transcript Volume VI at 8-9. Two of the three photographs admitted at the

       sentencing hearing show Scott in prison garb. We cannot say that the trial

       court abused its discretion in finding Scott’s gang involvement as an

       aggravating circumstance. Even assuming that the trial court abused its

       discretion with respect to this aggravator, we can say with confidence that the

       trial court would have imposed the same sentence given the remaining

       aggravators.


                                                        III.


[28]   The next issue is whether Scott’s sentence is inappropriate in light of the nature

       of the offense and the character of the offender. Scott argues that the jury found

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 14 of 17
       him not guilty of murder and that he was acting in sudden heat at the time of

       the offense. He asserts that the nature of the offense involved going through the

       pockets of an unconscious man and taking nothing. He acknowledges that he

       was on house arrest at the time of the offense but points out that the trial court

       found that he was remorseful. The State asserts that Scott’s sentence was

       justified in light of the extremely violent nature of the crime and his character.


[29]   Ind. Appellate Rule 7(B) provides that we “may 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 offense and the character

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006).


[30]   Ind. Code § 35-50-2-4.5 provides that a person who commits a level 2 felony

       shall be imprisoned for a fixed term of between ten and thirty years, with the

       advisory sentence being seventeen and one-half years.


[31]   Our review of the nature of the offense reveals that Scott chased Brown, struck

       Brown, stomped on him, searched his pockets, struck him again, searched him

       again, picked him up and threw him, and kicked him again. Brown died a day

       later.


[32]   Our review of the character of the offender reveals that Scott, who was born in

       1989, was charged with petit larceny as a misdemeanor in New York in 2007,

       but the PSI indicates no further information. In 2010, Scott pled guilty to

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 15 of 17
       criminal trespass as a class A misdemeanor. That same year, he was charged

       under another cause number with criminal trespass as a class A misdemeanor

       but the case was dismissed. In 2012, charges of robbery resulting in serious

       bodily injury as a class A felony, aggravated battery as a class B felony, and two

       counts of battery resulting in serious bodily injury were dismissed. In 2013,

       charges of strangulation and pointing a firearm at another person as class D

       felonies were dismissed. In 2014, Scott was charged with no operator license in

       possession and pled guilty to the amended charge of an infraction. In 2014, he

       pled guilty to resisting law enforcement as a misdemeanor. That same year, he

       was charged with conversion as a class A misdemeanor, but the case was

       dismissed. In 2016, he pled guilty to battery as a misdemeanor. In 2018, Scott

       was charged under cause number 45G02-1504-F1-00002 (“Cause No. 2”) with

       Count I, attempted murder as a level 1 felony, Count II, aggravated battery as a

       level 3 felony, and Count III, battery as a level 5 felony. The PSI indicates that

       a final pre-trial under Cause No. 2 was scheduled for March 8, 2018. The PSI

       lists pending charges related to an offense date of July 25, 2015, of Count I,

       failure to return to lawful detention as a level 6 felony, and Count II, criminal

       mischief as a class B misdemeanor. The PSI indicates that Scott’s overall risk

       assessment score places him in the moderate risk to reoffend category.


[33]   After due consideration, we conclude that Scott has not sustained his burden of

       establishing that his sentence of twenty-seven years with two years suspended to

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


[34]   For the foregoing reasons, we affirm Scott’s conviction and sentence.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 16 of 17
[35]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1195 | January 14, 2019   Page 17 of 17
