                                                                   Jan 28 2015, 10:08 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John S. Antalis                                           Gregory F. Zoeller
Lafayette, Indiana                                        Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Brent Anthony Dimmitt,                                    January 28, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          79A02-1406-CR-443
        v.                                                Appeal from the Tippecanoe Superior
                                                          Court
                                                          The Honorable Randy J. Williams,
State of Indiana,                                         Judge
Appellee-Plaintiff.                                       Cause No. 79D01-1301-FB-1




Bradford, Judge.




Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015                 Page 1 of 14
                                           Case Summary
[1]   On December 28, 2012, a fight broke out between several people outside of a

      Lafayette bar. During the altercation, Appellant-Defendant Brent Dimmitt

      attacked and injured two men, one of whom was seriously injured. Dimmitt

      admitted to being the president of a criminal gang called Rebel Cause. Dimmitt

      instigated and took part in the fight with several other members of Rebel Cause.

      Dimmitt was convicted of Class C felony battery, Class A misdemeanor

      battery, Class D felony criminal gang activity, and being a habitual offender.

      Dimmitt was sentenced to consecutive terms of eight years for Class C felony

      battery, one year for Class A misdemeanor battery, two years for criminal gang

      activity, and eight years for being a habitual offender, for a total of eighteen

      years served and one year suspended to probation.


[2]   Dimmitt claims that (1) the trial court fundamentally erred by failing to

      properly instruct the jury on the elements of the charge of criminal gang

      activity, (2) the trial court’s sentence exceeded the maximum sentence allowed

      by statute, and (3) the evidence was insufficient to support the conviction for

      criminal gang activity. We find that Dimmitt’s sentence was erroneous in two

      respects: (1) the trial court erred by imposing the habitual offender sentence as a

      separate count rather than as an enhancement of the underlying felony and (2)

      the sentence exceeded the statutory limitation for consecutive terms. We

      reverse and remand with instructions that Dimmitt’s sentence be reduced by

      one year. In all other respects, we affirm.



      Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015   Page 2 of 14
                             Facts and Procedural History
[3]   In the early morning hours of December 28, 2012, Troy Kelly, Raymond

      Depew, and David Widner arrived at a Lafayette bar with several friends.

      After being seated, a man in a blue hooded sweatshirt approached the group

      and confronted Depew about eye contact that had been made upon entering the

      bar. The man left the table but soon returned accompanied by two other men,

      Dimmitt and Robert Niles. During the verbal confrontation that ensued

      between the two groups, Dimmitt lifted his shirt, exposing several gang-related

      tattoos, and stated that he was the president of a gang called Rebel Cause.

      Dimmitt’s tattoos include a swastika on his chest and an emblem on his bicep

      which bears the words “rebel cause” and “pres.” Ex. 32, 36. Tr. pp. 399-400.

      There were other individuals in the bar with Rebel Cause tattoos. Niles was

      also a member of Rebel Cause. After members of Depew’s group made

      assurances that they did not want any trouble, Dimmitt shook hands with two

      people in the group and left.


[4]   At approximately 2:30 a.m., Depew’s group attempted to leave the bar.

      Dimmitt’s group followed them outside, at which point the man in the blue

      hooded shirt came up behind Depew and punched him in the back of the head.

      A fight ensued between several people from each group. Dimmitt and the man

      in the blue shirt grabbed Kelly while another man punched Kelly in the face.

      Dimmitt then held Kelly against a car and punched him in the face. Kelly

      suffered cuts and abrasions throughout his body and a torn rotator cuff.



      Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015   Page 3 of 14
      Minutes later, Dimmitt punched Widner, knocking him unconscious. Dimmitt

      then kicked Widner in the head as he laid on the ground unconscious.


[5]   As a result of the attack, Widner suffered a skull fracture and a subdural

      hematoma. Widner has suffered permanent brain damage as a result of the

      injury. He has since suffered from depression and anxiety and has had

      problems with walking, spatial awareness, fine motor skills on his left side, and

      social and communication skills.


[6]   Appellee-Plaintiff the State of Indiana (the “State”) charged Dimmitt with Class

      B felony aggravated battery, Class C felony battery, Class A misdemeanor

      battery, Class B misdemeanor battery, Class D felony criminal gang activity,

      and being a habitual offender. During the trial, the State introduced evidence

      from several gang specialists that Rebel Cause was a white supremacist prison

      gang that had expanded outside prisons. The gang has approximately 163

      members and has been known to engage in criminal activity including murder,

      kidnapping, armed robbery, arson, dealing cocaine, intimidation, battery, and

      assault. To be admitted to the gang, members must commit some type of

      physical assault against another person. When members leave the gang, they

      are physically assaulted by other members as punishment.


[7]   With regard to the criminal gang activity charge, the trial court instructed the

      jury as follows:

              The crime of criminal Gang Activity is defined as follows:
              A person who knowingly or intentionally actively participates in a
              criminal gang commits Criminal Gang Activity, a class D felony.

      Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015   Page 4 of 14
              Before you may convict the Defendant, the State must have proved
              each of the following elements beyond a reasonable doubt:
                      1. The Defendant
                      2. Knowingly or intentionally
                      3. Actively participated in
                      4. A criminal gang
              If the State failed to prove each of these elements beyond a reasonable
              doubt, you must find the Defendant not guilty of Criminal Gang
              Activity, a class D felony, as charged in Count V.
              If the State did prove each of these elements beyond a reasonable
              doubt, you may find the Defendant guilty of Criminal Gang Activity, a
              class D felony, as charged in Count V.
                                                 ****
              The term “criminal gang” means a group with at least three (3)
              members that specifically
                      promotes, sponsors, assists in, or participates in
                      or
                      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.

      Appellant’s App. pp. 401, 408.


[8]   The jury found Dimmitt guilty of Class C felony battery causing serious bodily

      injury, Class A misdemeanor battery, and Class D felony criminal gang

      activity. Dimmitt pled guilty to the habitual offender charge. The trial court

      sentenced Dimmitt to consecutive sentences of eight years for felony battery,

      one year for misdemeanor battery, two years for criminal gang activity, and

      eight years for being a habitual offender, for a total of eighteen years served and

      one year suspended to probation.



                                  Discussion and Decision
      Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015   Page 5 of 14
[9]    Dimmitt makes the following arguments on appeal: (1) the trial court

       fundamentally erred by failing to properly instruct the jury on the elements of

       the charge of criminal gang activity, (2) the trial court’s sentence exceeded the

       maximum sentence allowed by statute, and (3) the evidence was insufficient to

       support the conviction for criminal gang activity.


                  I. Fundamental Error in the Jury Instructions
[10]   Instructing a jury is left to the sound discretion of the trial court and this court

       will review such decisions only for an abuse of discretion. Washington v. State,

       997 N.E.2d 342, 345 (Ind. 2013). However, a party wishing to preserve such an

       error for appeal must identify the specific grounds for objection at trial. Kane v.

       State, 976 N.E.2d 1228, 1231 (Ind. 2012). As an initial matter, Dimmitt

       concedes that he failed to object to the instruction at trial. However, Dimmitt

       attempts to avoid the effect of his waiver by contending that the trial court

       committed a fundamental error in failing to properly instruct the jury.


[11]   At the time Dimmitt committed his offenses, Indiana Code section 35-45-9-3

       (the “Gang Statute”) stated, “[a] person who knowingly or intentionally

       actively participates in a criminal gang commits criminal gang activity, a class

       D felony.” In Helton v. State, 624 N.E.2d 499, 508 (Ind. Ct. App. 1993), this

       court construed the statute to require that “the active member with guilty

       knowledge also have a specific intent or purpose to further the group’s criminal

       conduct before he may be prosecuted.” “The specific-intent element requires

       proof of a nexus between furthering the goals of the criminal gang and the


       Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015   Page 6 of 14
       alleged crime.” G.H. v. State, 987 N.E.2d 1164, 1168 (Ind. Ct. App. 2013) trans.

       denied. Dimmitt claims that the trial court fundamentally erred by omitting the

       element of specific intent from its instruction.

               Fundamental error is an extremely narrow exception to the waiver rule
               where the defendant faces the heavy burden of showing that the
               alleged errors are so prejudicial to the defendant’s rights as to “make a
               fair trial impossible.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002),
               quoted in [Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012)] and [Cooper
               v. State, 854 N.E.2d 831, 835 (Ind. 2006)]. In other words, to establish
               fundamental error, the defendant must show that, under the
               circumstances, the trial judge erred in not sua sponte raising the issue
               because alleged errors (a) “constitute clearly blatant violations of basic
               and elementary principles of due process” and (b) “present an
               undeniable and substantial potential for harm.” Id. The element of
               such harm is not established by the fact of ultimate conviction but
               rather “depends upon whether [the defendant’s] right to a fair trial was
               detrimentally affected by the denial of procedural opportunities for the
               ascertainment of truth to which he otherwise would have been
               entitled.” Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994) (quoting
               Hart v. State, 578 N.E.2d 336, 338 (Ind. 1991)).


       Ryan v. State, 9 N.E.3d 663 (Ind. 2014), reh’g denied. Put differently, a

       fundamental error “must constitute a blatant violation of basic principles, the

       harm, or potential for harm must be substantial, and the resulting error must

       deny the defendant fundamental due process.” Spears v. State, 811 N.E.2d 485,

       489 (Ind. Ct. App. 2004)


[12]   The trial court’s failure to sua sponte instruct the jury on the specific-intent

       element was not a fundamental error because there was no substantial harm to

       Dimmitt. The State provided substantial evidence which indicated a nexus

       between Dimmitt’s offenses and furthering the goals of his criminal gang.

       Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015      Page 7 of 14
       Specifically, the State showed that the members of Rebel Cause typically

       engage in violent behavior, including battery, as part of ritual initiations and

       punishments, and more generally to promote fear and maintain an image of

       viciousness. From the beginning of the altercation between Dimmitt and the

       victims’ group, Dimmitt was clear about his affiliation and leadership within

       the gang. He used this affiliation, and the tattoos designating such, as a means

       to intimidate the victims. Furthermore, Dimmitt took part in the batteries with

       several individuals who were also identified as members of Rebel Cause.

       Therefore, because the State provided evidence to support the finding of a

       nexus, there was no undeniable or substantial potential for harm as is necessary

       to find a fundamental error.


                                   II. Sufficiency of Evidence
[13]   Dimmitt argues that there was insufficient evidence to support his conviction

       for criminal gang activity because there was not substantial evidence of a nexus

       between Dimmitt’s gang affiliation and the charged offenses.

                       When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative evidence
               and reasonable inferences supporting the verdict. It is the fact-finder’s
               role, not that of appellate courts, to assess witness credibility and
               weigh the evidence to determine whether it is sufficient to support a
               conviction. To preserve this structure, when appellate courts are
               confronted with conflicting evidence, they must consider it most
               favorably to the trial court’s ruling. Appellate courts affirm the
               conviction unless no reasonable fact-finder could find the elements of
               the crime proven beyond a reasonable doubt. It is therefore not
               necessary that the evidence overcome every reasonable hypothesis of



       Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015      Page 8 of 14
               innocence. The evidence is sufficient if an inference may reasonably
               be drawn from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (internal quotations and

       citations omitted, emphasis in original).


[14]   To support his argument, Dimmitt cites to cases in which this court, and the

       Indiana Supreme Court, have reversed convictions for criminal gang activity

       where there was not a sufficient nexus between the offense and the gang

       affiliation. Trice v. State, 693 N.E.2d 649 (Ind. App. Ct. 1998); Ferrell v. State,

       746 N.E.2d 48 (Ind. 2001). In Ferrell, the Court found that “[t]he State’s case

       on [the criminal gang activity] offense consisted only of evidence that Ferrell, at

       some point, was a member of a gang that commits criminal offenses.” Id. at 51.

       Specifically, the State only presented evidence that Ferrell had gang tattoos.

       There was no other evidence which tied his commission of robbery and murder

       to his gang affiliation.


[15]   In Trice, the defendant belonged to a gang called D’Ware, which was known to

       engage in narcotics trafficking. 693 N.E.2d at 650. Although Trice admitted to

       being an active gang member, there was no evidence which showed how Trice’s

       battery of the victim was related to any gang activities. Rather, the evidence

       showed that Trice beat the victim “spontaneously” after the victim caused

       Trice’s bottle of liquor to spill and refused to pay for it. Id. at 651.


[16]   The instant case is distinguishable from Ferrell and Trice. As we have already

       outlined in detail, there is substantial evidence indicating a nexus between the


       Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015     Page 9 of 14
       battery and the gang activity: Dimmitt openly announced his affiliation with

       Rebel Cause at the outset of the confrontation and used that affiliation as a

       means of intimidation; battery is commonly used by the gang for various

       reasons to further its criminal goals; and Dimmitt committed the underlying

       offenses together with other members of Rebel Cause. As such, the evidence

       was not insufficient to support the conviction for criminal gang activity.


                     III. Sentence in Excess of Statutory Limits
                              A. Habitual Offender Enhancement
[17]   The version of Indiana Code section 35-50-2-1.3 which was in effect at the time

       the instant offenses were committed provided as follows:

               (a) For purposes of sections 3 through 7 of this chapter, “advisory
               sentence” means a guideline sentence that the court may voluntarily
               consider as the midpoint between the maximum sentence and the
               minimum sentence.
               (b) Except as provided in subsection (c), a court is not required to use
               an advisory sentence.
               (c) In imposing:
                       (1) consecutive sentences for felony convictions that are not
                       crimes of violence (as defined in [Indiana Code section] 35-50-
                       1-2(a)) arising out of an episode of criminal conduct, in
                       accordance with [Indiana Code section] 35-50-1-2;
                       (2) an additional fixed term to an habitual offender under
                       section 8 of this chapter; or
                       (3) an additional fixed term to a repeat sexual offender under
                       section 14 of this chapter;
               a court is required to use the appropriate advisory sentence in
               imposing a consecutive sentence or an additional fixed term. However,
               the court is not required to use the advisory sentence in imposing the
               sentence for the underlying offense.



       Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015   Page 10 of 14
[18]   The trial court sentenced Dimmitt to the maximum eight-year sentence on

       Count II, Class C felony battery resulting in serious bodily harm, and an

       additional eight years on Count VI, habitual offender. Dimmitt argues that the

       eight-year sentence for being a habitual offender violates the statute because it is

       an additional fixed term greater than the four-year advisory sentence for a Class

       C felony. Dimmitt mischaracterizes the statute. Section 35-50-2-1.3 states that

       it does not apply to the sentence for the underlying offense. The habitual

       offender statute does not carry the same advisory sentence as the statute

       governing Class C felonies. Indiana Code section 35-50-2-8(h), as was in effect

       at the time Dimmitt committed the instant offenses, provided that “[t]he court

       shall sentence a person found to be a habitual offender to an additional fixed

       term that is not less than the advisory sentence for the underlying offense nor

       more than three (3) times the advisory sentence for the underlying offense.” As

       such, the eight-year enhancement for being a habitual offender did not violate

       the statute as the trial court could have sentenced Dimmitt up to twelve years

       (three times the four-year advisory sentence for the underlying Class C felony).


[19]   However, we note that the trial court erred in applying the habitual offender

       sentence as a separate count. The State concedes this point and notes that a

       habitual offender finding does not constitute a separate crime, nor does it result

       in a separate sentence. Rather, it is a sentence enhancement imposed upon the

       underlying felony conviction. Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind.

       2001). As such, remand is necessary to remedy this error.




       Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015   Page 11 of 14
            B. Convictions Arising Out of One Episode of Criminal
                                   Conduct
[20]   Dimmitt claims that his aggregate sentence of eleven years for Class C felony

       battery, Class D felony criminal gang activity, and Class A misdemeanor

       battery, violated Indiana Code section 35-50-1-2(c) and should be reduced to a

       term not greater than ten years.

               Except as provided in subsection (d) or (e), the court shall determine
               whether terms of imprisonment shall be served concurrently or
               consecutively …. [T]he total of the consecutive terms of
               imprisonment, exclusive of terms of imprisonment under [Indiana
               Code section] 35-50-2-8 and [Indiana Code section] 35-50-2-10, to
               which the defendant is sentenced for felony convictions arising out of
               an episode of criminal conduct shall not exceed the advisory sentence
               for a felony which is one (1) class of felony higher than the most
               serious of the felonies for which the person has been convicted.


[21]   Dimmitt was sentenced to eight years on the Class C felony, two years on the

       Class D felony, and one year on the misdemeanor. At Dimmitt’s sentencing,

       the State opined that Section 35-50-1-2(c) would only apply to the two felony

       convictions and that, under that statute, Dimmitt could be sentenced to a

       maximum aggregate term of ten years for the two felony convictions (the

       advisory sentence for a Class B felony) and one additional year for the

       misdemeanor. Dimmitt claims that his misdemeanor conviction should have

       been included in the consecutive sentencing limitation of Section 35-50-1-2.

       The State concedes on appeal that its prior assertion at trial was incorrect and

       that the statute has been interpreted to include misdemeanors in addition to

       felonies (see Purdy v. State, 727 N.E.2d 1091 (Ind. Ct. App. 2000)). However,

       Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015   Page 12 of 14
       the State argues that the Section 35-50-1-2 does not apply to Dimmitt’s

       misdemeanor conviction because the offenses did not arise out of a single

       episode of criminal conduct. We do not agree with the State’s position in this

       regard.


[22]   At the sentencing hearing, the State conceded that the offenses occurred as part

       of a single episode of criminal conduct. Despite this apparent waiver, the State

       now claims that the two separate batteries were not part of a single episode of

       conduct because they were committed against two separate victims. The phrase

       “episode of criminal conduct” means “offenses or a connected series of offenses

       that are closely related in time, place, and circumstance.” Ind. Code § 35-50-1-

       2(b). The two batteries took place approximately a few minutes apart, occurred

       as part of the same conflict, in the same place, and between the same groups of

       people. The only material distinction between the two crimes was the identity

       of the victim. This distinction alone is not enough to determine that the

       offenses were not part of the same episode of criminal conduct.


[23]   In Harris v. State, 861 N.E.2d 1182 (Ind. 2007), Harris was convicted of two

       counts of sexual misconduct with a minor. The two offenses occurred

       approximately five minutes apart in the same apartment against two different

       victims. The Indiana Supreme Court determined that the two offenses were a

       single episode of criminal conduct and reduced Harris’s sentence accordingly.

       Id. at 1189. In reaching this conclusion, the Court noted two other cases from

       the Indiana Court of Appeals which similarly involved multiple victims and

       longer time spans between offenses, yet each was determined to be a single

       Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015   Page 13 of 14
       “episode.” Id. (citing Trei v. State, 658 N.E.2d 131 (Ind. Ct. App. 1995) and

       Ballard v. State, 715 N.E.2d 1276 (Ind. Ct. App. 1999)). We see no reason to

       distinguish Dimmitt’s offenses. Accordingly, we remand with instructions to

       reduce Dimmitt’s eleven-year sentence for felony battery, felony criminal gang

       activity, and misdemeanor battery, to ten years.



                                                Conclusion
[24]   We reverse the trial court’s sentence and remand with instructions that (1) the

       eight-year habitual offender sentence be imposed as an enhancement rather

       than a separate consecutive sentence and (2) the aggregate sentence for felony

       battery, misdemeanor battery, and criminal gang activity, be reduced from

       eleven to ten years, which is the maximum permitted by statute at the time the

       crimes were committed in the course of a single episode of criminal

       misconduct.


[25]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015   Page 14 of 14
