MEMORANDUM DECISION
                                                                May 27 2015, 8:56 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimmerly A. Klee                                         Gregory F. Zoeller
Greenwood, Indiana                                       Attorney General of Indiana

                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Dominique Hamler,                                        May 27, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A02-1407-CR-452
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        Cause No. 49G04-1211-MR-80841

Appellee-Plaintiff.                                      The Honorable Lisa Borges, Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015      Page 1 of 15
                                            Case Summary
[1]   Dominique Hamler appeals his convictions and sentence for murder, Class A

      felony attempted murder, Class B felony robbery, and Class B felony criminal

      confinement. We affirm.


                                                    Issues
[2]   The issues before us are:


              I.      whether Hamler’s convictions for murder, attempted
                      murder, and Class B felony robbery violate double
                      jeopardy; and
              II.     whether Hamler’s aggregate 140-year sentence is
                      inappropriate.

                                                    Facts
[3]   On November 15, 2012, Thomas Keys, an Indianapolis DJ, called Marvin

      Finney and asked him to help record a mix tape in memory of a local rapper

      named “Bango.” Tr. p. 128. Bango had been shot and killed about a week

      earlier. Hamler was best friends with Bango and also referred to him as a

      “brother.” Id. at 150. On this date, Hamler was nineteen and would turn

      twenty in two weeks.


[4]   On that same afternoon, Hamler was having his hair braided at his father’s

      house when Nathaniel Armstrong and James McDuffy came to the house.

      Armstrong said, “We gonna get ‘em,” and Hamler left with Armstrong and

      McDuffy. Id. at 246. Hamler and Armstrong were overheard at another house

      having a conversation in which one of them said they were going to “get the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015   Page 2 of 15
      motherf***ers” who had killed Bango. Id. at 406. A couple hours later,

      Armstrong returned to the house, grabbed some guns, and stated, “We found

      the motherf***ers,” before leaving again. Id. at 409.


[5]   At about 5:00 p.m., Finney and Keys arrived at a music studio operated by

      Carlton Hart in Indianapolis to work on the mix tape for Bango. They were let

      into the studio by Dontee Robinson and led into a room where McDuffy and

      an unidentified man with “Asian eyes” were waiting for them. Id. at 137.

      Robinson and McDuffy began asking Finney and Keys who killed Bango and

      insinuating that Keys knew who had killed him. Keys denied having any

      knowledge about the murder. McDuffy then pulled out a handgun, and

      Robinson pulled out an assault rifle. McDuffy and Robinson patted down

      Finney and Keys, removed the belongings from their pockets, and told Finney

      and Keys that they would not be going home if they did not disclose what they

      knew about Bango’s murder.


[6]   At this point, Hamler walked into the room, appearing very aggressive and

      mad. He pointed an assault rifle at Finney and Keys and yelled, “Which one of

      you all killed my brother, Bango?” Id. at 150. Not receiving a satisfactory

      response, Hamler then said, “Why they ain’t tied up yet?” Id. at 151. Hamler

      and McDuffy then punched Finney, who was then tied up with zip ties by the

      man with “Asian eyes.” Keys also was punched and kicked to the ground and

      tied up with zip ties. Hamler and McDuffy continued questioning Finney and

      Keys; Hamler also demanded that Finney unlock his phone so Hamler could

      see with whom he had been communicating.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015   Page 3 of 15
[7]   At some point, Armstrong and a second unidentified man, who was bald, came

      into the room. Armstrong took a box cutter and sliced Keys’s leg with it. After

      Armstrong and the bald man came into the room, Finney heard someone say,

      “We’re doing this for Bango. We don’t care if you all got something to do with

      it or not. Somebody got to pay.” Id. at 158. Armstrong then told McDuffy to

      duct tape Finney’s and Keys’s mouths shut, and he did so. The group also

      placed zip ties tightly around Finney’s and Keys’s necks. Hamler, Robinson,

      Armstrong, and the bald man left the room to get gloves and “finish it off.” Id.

      at 162. When these four returned to the room wearing work gloves, the bald

      man began discussing various ways they could kill Finney and Keys. There

      was continued discussion of whether Finney and Keys knew who had killed

      Bango, and the need to “do this for Bango,” while Bango’s music played in the

      background. Id. at 166.


[8]   Finally, the lights were turned off, Finney and Keys were left in the room, while

      the other six men—Hamler, McDuffy, Robinson, Armstrong, and the two

      unidentified men—left. Then, one of the men returned to the room. Finney

      could not identify who had returned and could only say that he was wearing

      black and had dreadlocks; this could have described either Hamler or Robinson.

      This person then began shooting at both Finney and Keys. Keys was shot and

      killed, while Finney was shot in both wrists and played dead. Afterwards,

      Finney managed to flee from the studio and seek help at a nearby drugstore at

      approximately 8:00 p.m.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015   Page 4 of 15
[9]    Hamler, Armstrong, and McDuffy returned to Hamler’s father’s house.

       Hamler, who was sweaty and appeared nervous, gave his father a handgun “to

       put up.” Id. at 247. Armstrong also returned to the other house he had been at

       earlier and said that “We got the motherf***ers” and that they bound the

       victims with duct tape, “worked them over,” shut off the lights, and then

       opened fire. Id. at 410-11.


[10]   The State charged Hamler with murder, felony murder, Class A felony

       attempted murder, Class A felony robbery, Class B felony criminal

       confinement, and Class B felony conspiracy to commit criminal confinement.

       The robbery count alleged both that Hamler had been armed with a deadly

       weapon and that the robbery had resulted in serious bodily injury to Keys and

       Finney. At trial, the jury was instructed that the offense of robbery is a Class B

       felony if it is committed while armed with a deadly weapon and that it was

       required to find that Hamler had been armed with a deadly weapon. The jury

       found Hamler guilty as charged. However, the trial court did not enter

       judgments of conviction for felony murder or conspiracy to commit criminal

       confinement. It also entered judgment for robbery as a Class B felony instead

       of a Class A felony. It imposed sentences of sixty-five years for murder, fifty

       years for attempted murder, ten years for robbery, and fifteen years for criminal

       confinement, all to be served consecutively for a total sentence of 140 years.

       Hamler now appeals.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015   Page 5 of 15
                                                   Analysis
                                             I. Double Jeopardy

[11]   Hamler first contends his conviction for robbery must be reduced to a Class C

       felony because of double jeopardy concerns, given his convictions for murder

       and attempted murder. Under Article 1, Section 14 of the Indiana

       Constitution, “‘[T]wo or more offenses are the “same offense” . . . if, with

       respect to either the statutory elements of the challenged crimes or the actual

       evidence used to convict, the essential elements of one challenged offense also

       establish the essential elements of another challenged offense.’” Cross v. State,

       15 N.E.3d 569, 571 (Ind. 2014) (quoting Richardson v. State, 717 N.E.2d 32, 49

       (Ind. 1999) (emphasis in original) (footnote omitted)). Under the Richardson

       “actual evidence” test, the Indiana Double Jeopardy Clause is not violated if

       “the evidentiary facts establishing the essential elements of one offense also

       establish only one or even several, but not all, of the essential elements of a

       second offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). In addition

       to the “actual evidence” test, there are “‘a series of rules of statutory

       construction and common law that supplements the constitutional protections’”

       outlined in Richardson. Cross, 15 N.E.3d at 571 (quoting Miller v. State, 790

       N.E.2d 437, 439 (Ind. 2003)). One such rule “prohibit[s] conviction and

       punishment ‘for an enhancement of a crime where the enhancement is imposed

       for the very same behavior or harm as another crime for which the defendant has

       been convicted and punished.’” Miller, 790 N.E.2d at 439 (quoting Richardson,

       717 N.E.2d at 56 (Sullivan, J., concurring)). Hamler’s argument that his


       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015   Page 6 of 15
       conviction for Class B felony robbery causes a double jeopardy conflict with his

       convictions for murder and attempted murder arises from this particular rule.


[12]   At the time of the crime, in order to elevate robbery from a Class C to a Class B

       felony, the State was required to prove either that it was committed while

       armed with a deadly weapon or resulted in bodily injury to anyone other than a

       defendant. Ind. Code § 35-42-5-1 (2012). Robbery was elevated to a Class A

       felony if it resulted in serious bodily injury to anyone other than a defendant. 1

       Id. Hamler claims that the bodily injuries to Finney and Keys established both

       his convictions for murder and attempted murder and also established a bodily

       injury enhancement to make the robbery a Class B felony. He relies upon

       Williams v. State, 757 N.E.2d 1048 (Ind. Ct. App. 2001), trans. denied. In that

       case, the defendant was convicted of both attempted murder and Class A felony

       robbery based upon shooting the victim in the head. The majority in Williams

       held that the robbery conviction had to be reduced to a Class C felony because

       there was no evidence of any other injuries presented other than the shot to the

       head that occurred as part of the robbery. Williams, 757 N.E.2d at 1070. Judge

       Baker dissented on this issue, believing that the robbery conviction only had to

       be reduced to a Class B felony and stating, “Because Williams was armed with

       a deadly weapon, double jeopardy protections do not prohibit convicting




       1
        The trial court reduced Hamler’s Class A felony robbery conviction to a Class B felony to avoid conflict
       with the serious bodily injuries sustained by Finney and Keys as supported the murder and attempted murder
       convictions.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015             Page 7 of 15
       Williams of class-B-felony robbery and attempted murder.” Id. at 1070 (Baker,

       J., dissenting).


[13]   After Williams was decided, our supreme court issued opinions consistent with

       Judge Baker’s dissent. In Gross v. State, 769 N.E.2d 1136 (Ind. 2002), the

       defendant was convicted of both murder and Class A felony robbery when he

       shot and killed the robbery victim. The court agreed that the Class A felony

       robbery conviction could not stand but ordered that it be reduced to a Class B

       felony, not a Class C felony. Specifically, the court noted that the State had

       charged the defendant “with both the bodily injury variety of Class B felony

       robbery as well as the armed with a deadly weapon variety of the offense.”

       Gross, 769 N.E.2d at 1139. Additionally, the jury had been instructed on both

       varieties of Class B felony robbery. Id. at 1139-40. Under these circumstances,

       the court held that it was appropriate to reduce the robbery conviction to a

       Class B felony. See also Robinson v. State, 775 N.E.2d 316, 320 (Ind. 2002)

       (holding there was no double jeopardy conflict between convictions for murder

       and Class B felony robbery because jury was instructed to it had to find

       defendant committed robbery while armed with a deadly weapon).


[14]   Here, as in Gross, the State’s charging information for robbery expressly alleged

       both that Finney and/or Keys suffered serious bodily injury, and that Hamler

       was armed with a deadly weapon. The jury likewise was instructed on the

       robbery charge that it had to find Hamler was armed with a deadly weapon. As

       such, there is no double jeopardy conflict between Hamler’s convictions for

       murder and attempted murder, based upon Keys’s and Finney’s injuries, and

       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015   Page 8 of 15
       Class B felony robbery, based upon Hamler’s use of a deadly weapon. See

       Gross, 769 N.E.2d at 1139-40. We affirm Hamler’s conviction for Class B

       felony robbery.


                                                  II. Sentence

[15]   Hamler also contends that his aggregate 140-year sentence is inappropriate

       under Indiana Appellate Rule 7(B) in light of the nature of the offenses and his

       character. Although Rule 7(B) does not require us to be “extremely” deferential

       to a trial court’s sentencing decision, we still must give due consideration to that

       decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

       also understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. “Additionally, a defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.” Id.


[16]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately turns on the culpability of the defendant, the severity of the crime,

       the damage done to others, and myriad other factors that come to light in a

       given case. Id. at 1224. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences
       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015   Page 9 of 15
       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[17]   Hamler relies primarily upon two cases in arguing that his sentence is

       inappropriate: Fuller v. State, 9 N.E.3d 653 (Ind. 2014), and Brown v. State, 10

       N.E.3d 1 (Ind. 2014). These companion cases, decided on the same day by our

       supreme court, concerned young co-defendants in a double murder-robbery.

       Fuller, who was fifteen, and Brown, who was sixteen, acted in concert with a

       third teenager, an eighteen-year-old, in committing a home robbery in which

       two victims were shot and killed. Fuller was one of the actual shooters of the

       victims while Brown was only an accomplice. The teenagers robbed the victims

       of several thousand dollars, a large quantity of marijuana, and several other

       items, and then went on a shopping spree with the cash. After Fuller and

       Brown each were convicted as adults of two counts of murder and one count of

       Class B felony robbery, the trial court imposed aggregate sentences of 150 years

       for each of them and their eighteen-year-old co-defendant.


[18]   Our supreme court decided that 150 years was inappropriate for Fuller and

       Brown, revising Fuller’s sentence to a total of eighty-five years and Brown’s to

       eighty years. Fuller, 9 N.E.3d at 659; Brown, 10 N.E.3d at 8.2 The court found

       that, although the offenses were “senseless and reprehensible,” there was



       2
        Our supreme court imposed a slightly longer sentence upon Fuller because he actually shot the victims
       while Brown did not. Fuller, 9 N.E.3d at 659.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015             Page 10 of 15
nothing “particularly heinous” about them, noting “there is no evidence that

the victims were tortured, beaten, or lingered in pain.” Brown, 10 N.E.3d at 5.

The court then discussed the young age of the defendants at length with respect

to their character. It stated, “We take this opportunity to reiterate what the

United States Supreme Court has expressed: Sentencing considerations for

youthful offenders—particularly for juveniles—are not coextensive with those

for adults.” Id. at 6 (citing Miller v. Alabama, -- U.S. --, 132 S. Ct. 2455, 2469

(2012)). It acknowledged the Supreme Court’s “general recognition that

juveniles are less culpable than adults and therefore are less deserving of the

most severe punishments.” Id. at 7 (citing Graham v. Florida, 560 U.S. 48, 68,

130 S. Ct. 2011, 2026 (2010)). There are at least three reasons for this. First,

“juveniles have a ‘lack of maturity and an underdeveloped sense of

responsibility.’” Graham, 560 U.S. at 68, 130 S. Ct. at 2026 (quoting Roper v.

Simmons, 543 U.S. 551, 569, 125 S. Ct. 1183, 1195 (2005)). Second, “they ‘are

more vulnerable or susceptible to negative influences and outside pressures,

including peer pressure.’” Id. at 68, 130 S. Ct. at 2026 (quoting Roper, 543 U.S.

at 569, 125 S. Ct. at 1195). Juveniles also “have limited ‘contro[l] over their

own environment’ and lack the ability to extricate themselves from horrific,

crime-producing settings.” Miller, 132 S. Ct. at 2464 (alteration in original)

(quoting Roper, 543 U.S. at 569, 125 S. Ct. at 1195). Third, “a child’s character

is not as ‘well formed’ as an adult’s . . . and his actions [are] less likely to be

‘evidence of irretrievabl[e] deprav[ity].’” Id. (alteration in original) (quoting

Roper, 543 U.S. at 570, 125 S. Ct. at 1195).


Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015   Page 11 of 15
[19]   Our supreme court also noted other cases in which it had reduced sentences

       based in part on a defendant’s youth, including: Carter v. State, 711 N.E.2d 835,

       836-37 (Ind. 1999) (reducing fourteen-year-old’s maximum sentence for

       murder); Walton v. State, 650 N.E.2d 1134, 1135, 1137 (Ind. 1995) (reducing

       sixteen-year-old’s maximum double-murder sentence); Widener v. State, 659

       N.E.2d 529, 530 (Ind. 1995) (reducing seventeen-year-old’s sentence for

       murder-robbery). Brown, 10 N.E.3d at 7-8. The court also stated that a 150-

       year sentence was effectively the same as a sentence of life without parole and

       that it “‘forswears altogether the rehabilitative ideal.’” Id. at 8 (quoting Graham,

       560 U.S. at 74, 130 S. Ct. at 2030). Such a long sentence also “‘means denial of

       hope; it means that good behavior and character improvement are immaterial;

       it means that whatever the future might hold in store for the mind and spirit of

       the [juvenile] convict, he will remain in prison for the rest of his days.’”

       Graham, 560 U.S. at 70, 130 S. Ct. at 2027 (quoting Naovarath v. State, 779 P.2d

       944, 944 (Nev. 1989)).


[20]   Despite the opinions in Fuller and Brown, we are not convinced our supreme

       court intended to discard its holdings from earlier cases that a defendant’s youth

       is not automatically a significant mitigating factor. See Gross, 769 N.E.2d at

       1141 n.4 (Ind. 2002). “[C]hronological age for people in their teens and early

       twenties is not the sole measure of culpability.” Id. (citing Ellis v. State, 736

       N.E.2d 731, 736 (Ind. 2000)). “There are both relatively old offenders who

       seem clueless and relatively young ones who appear hardened and purposeful.”

       Ellis, 736 N.E.2d at 736.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015   Page 12 of 15
[21]   In reviewing the record in this case and the presentence report, we conclude

       Hamler is more “hardened and purposeful” than “clueless.” There is no

       indication in the trial record that Hamler was influenced or coerced by other,

       older persons into committing these crimes. Hamler appears to have fully been

       an eager, willing participant. Although it is not known who fired the shots at

       Finney and Keys, Hamler was aggressively threatening both of them during the

       encounter, pointing an assault rifle at them and demanding that they be tied up.

       The only person whom Finney described as having any hesitation about what

       was happening was McDuffy.


[22]   Additionally, Hamler has had nearly continuous contact with the criminal

       justice system since the age of fourteen, when he was first arrested for trespass.

       He was arrested another eight times as a juvenile, resulting in true findings for

       Class A misdemeanor battery, Class D felony trespass, two counts of Class A

       misdemeanor trespass, Class D felony theft, and Class A misdemeanor fleeing

       law enforcement. As an adult, Hamler has a conviction for Class D felony

       criminal gang activity, had his probation revoked for that offense, and received

       another conviction for Class C misdemeanor operating a vehicle without a

       license. He had other arrests that did not result in convictions. Among these

       arrests was one for Class C felony criminal recklessness, Class D felony

       criminal gang activity, Class A misdemeanor carrying a handgun without a

       license, and Class A misdemeanor dangerous possession of a firearm; this case

       was dismissed because of an essential witness’s refusal or reluctance to testify.

       Hamler also received several misconduct reports while awaiting trial in jail. In


       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015   Page 13 of 15
       short, especially given Hamler’s criminal gang activity conviction, 3 it is

       apparent that he already was a “hardened” and experienced criminal at the time

       he committed these offenses. Additionally, Hamler was just two weeks shy of

       his twentieth birthday when he committed these crimes. He was not legally a

       juvenile, unlike the defendants in Fuller and Brown. Under the circumstances of

       this case, we do not believe Hamler’s relatively young age warrants any special

       consideration when examining his character and the sentence he received.


[23]   We also believe the nature of the offenses here is more egregious than the

       offenses in Fuller and Brown. Hamler fully participated in the terrorizing of

       Finney and Keys for approximately three hours, which included binding both

       men with duct tape and zip ties and shooting them. Hamler personally, as well

       as the others, repeatedly badgered Finney and Keys for information about

       Bango’s death. When such information was not forthcoming, Hamler and the

       others decided they needed to kill Finney and Keys as some kind of tribute to

       Bango despite any indication that either Finney or Keys were responsible for or

       knew anything about Bango’s death.


[24]   In sum, despite some similarities between this case and the facts in Fuller and

       Brown, as well as the sentences received by Hamler and the defendants in those

       cases, we cannot say that Hamler’s 140-year sentence is inappropriate. Hamler

       was several years older than those defendants and the record indicates his



       3
        In fact, the presentence report states that Hamler helped form a criminal gang when he was fifteen years
       old.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015              Page 14 of 15
       hardened nature. And, the nature of the offenses here was also more egregious.

       We fail to perceive sufficient justification for reducing Hamler’s sentence.


                                                Conclusion
[25]   Hamler’s conviction for Class B felony robbery does not create a double

       jeopardy conflict with his convictions for murder and attempted murder. Also,

       his 140-year sentence is not inappropriate. We affirm.


       Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-452 |May 27, 2015   Page 15 of 15
