MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this May 25 2017, 9:53 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose CLERK Indiana Supreme Court of establishing 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 Scott L. Barnhart Curtis T. Hill, Jr. Brooke Smith Attorney General of Indiana Keffer Barnhart LLP Caryn N. Szyper Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dontez Demitri Bryant, May 25, 2017
Appellant-Defendant, Court of Appeals Case No. 82A01-1701-CR-41 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Hon. Robert J. Pigman, Judge Trial Court Cause No. Appellee-Plaintiff. 82D03-1604-F1-2262
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017 Page 1 of 7 Case Summary
[1] In April of 2016, Appellant-Defendant Dontez Bryant was sitting and talking
on an Evansville front porch with Antonio Bushrod, Jr., and two others. At
some point, Bryant stood as if to leave, but instead drew a handgun,
approached Bushrod, and shot him once in the chest at close range. The State
charged Bryant with Level 1 felony attempted murder and Level 5 felony
possession of a firearm without a license. Following trial, a jury found Bryant
guilty of attempted murder, and the State dismissed the weapons charge. The
trial court sentenced Bryant to thirty-five years of incarceration. Bryant
contends that the State failed to prove that he had the specific intent to kill
Bushrod and that his sentence is inappropriately harsh. Because we disagree
with both contentions, we affirm.
Facts and Procedural History
[2] On April 16, 2016, Charles Jones was on the porch of his Evansville home with
Bushrod and two other persons. At some point, Bryant arrived in his car and
shook Bushrod’s hand; shortly thereafter, Jones left, leaving Bryant and
Bushrod on the porch. Jones returned approximately half an hour later when
he heard a gunshot, and while he did not witness what had occurred, a
surveillance system caught the shooting from two angles. At some point after
Jones left, Bryant stood on the porch as if to leave, drew a handgun, walked
Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017 Page 2 of 7 over to Bushrod, and shot him in the chest. Bushrod fell out of his chair as the
others on the porch took cover.
[3] On April 18, 2016, the State charged Bryant with Level 1 felony attempted
murder and Level 5 felony possession of a firearm without a license. On
November 3, 2016, the jury found Bryant guilty of attempted murder, and the
State dismissed the possession of a firearm without a license charge. On
December 13, 2016, the trial court sentenced Bryant to thirty-five years of
incarceration. Bryant contends that the State failed to produce sufficient
evidence to sustain a finding that he intended to kill Bushrod when he shot him
and that his sentence is inappropriately harsh.
Discussion and Decision
I. Intent to Kill [4] Bryant contends that the State produced insufficient evidence to establish that
he intended to kill Bushrod when he shot him in the chest. When reviewing the
sufficiency of the evidence to support a conviction, we consider only the
probative evidence and reasonable inferences supporting the verdict. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder’s role to assess
witness credibility and weigh the evidence to determine whether it is sufficient
to support a conviction. Id. We consider conflicting evidence in the light most
favorable to the trial court’s ruling. Id. We affirm the conviction unless no
Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017 Page 3 of 7 reasonable fact-finder could find that the elements of the crime were proven
beyond a reasonable doubt. Id.
[5] To convict Bryant of Level 1 felony attempted murder, the State was required
to prove beyond a reasonable doubt that Bryant, while acting with the specific
intent to kill another person, engaged in conduct constituting a substantial step
toward the killing. Ind. Code §§ 35-41-5-1, 35-42-1-1; Blanche v. State, 690
N.E.2d 709, 712 (Ind. 1998). The heightened requirement of proof of specific
intent to kill in attempted murder cases is based upon the stringent penalties for
attempted murder and ambiguities often involved in proving such a charge.
Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015) (citing Hopkins v. State, 759 N.E.2d
633, 637 (Ind. 2001)).
[6] The jury may infer specific intent to kill from “the nature of the attack and the
circumstances surrounding the crime.” Kiefer v. State, 761 N.E.2d 802, 805
(Ind. 2002). Intent to kill may be inferred “from the use of a deadly weapon in
a manner likely to cause death or great bodily injury.” Id. (citation omitted).
“Further, our supreme court has held that discharging a weapon in the direction
of a victim is substantial evidence from which the jury could infer intent to kill.”
Corbin v. State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006) (citing Leon v. State,
525 N.E.2d 331, 332 (Ind. 1988)). Moreover, where discharge of a firearm is
concerned, the distance between the defendant and victim is also a relevant
consideration in determining whether the defendant specifically intended to kill
the victim. See Richeson v. State, 704 N.E.2d 1008, 1010 (Ind. 1998).
Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017 Page 4 of 7 [7] The surveillance footage shows that Bryant draw a handgun, stood up, moved
in Bushrod’s direction, aimed the gun at Bushrod’s chest, and fired at very
nearly point-blank range. After shooting Bushrod, Bryant ran to his car and
drove off. The surveillance video clearly shows Bryant using a deadly weapon
in a way likely to cause death or serious injury, i.e., deliberately shooting
Bushrod in the chest from no more than a couple of feet away. From this
evidence, the jury was entitled to infer the specific intent to kill. Bryant argues
that the record as a whole fails to establish the specific intent to kill because
Bushrod did not testify that the conversation leading up to the shooting turned
“aggressive” or “to fighting[.]” Tr. p. 101. This, however, is an invitation to
reweigh the evidence, which we will not do. See Drane, 867 N.E.2d at 146.
Bryant has not established that the State failed to produce sufficient evidence to
sustain his conviction for attempted murder.
II. Inappropriateness of Sentence [8] We “may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, the Court finds that the sentence is inappropriate in
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this May 25 2017, 9:53 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose CLERK Indiana Supreme Court of establishing 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 Scott L. Barnhart Curtis T. Hill, Jr. Brooke Smith Attorney General of Indiana Keffer Barnhart LLP Caryn N. Szyper Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dontez Demitri Bryant, May 25, 2017
Appellant-Defendant, Court of Appeals Case No. 82A01-1701-CR-41 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Hon. Robert J. Pigman, Judge Trial Court Cause No. Appellee-Plaintiff. 82D03-1604-F1-2262
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017 Page 1 of 7 Case Summary
[1] In April of 2016, Appellant-Defendant Dontez Bryant was sitting and talking
on an Evansville front porch with Antonio Bushrod, Jr., and two others. At
some point, Bryant stood as if to leave, but instead drew a handgun,
approached Bushrod, and shot him once in the chest at close range. The State
charged Bryant with Level 1 felony attempted murder and Level 5 felony
possession of a firearm without a license. Following trial, a jury found Bryant
guilty of attempted murder, and the State dismissed the weapons charge. The
trial court sentenced Bryant to thirty-five years of incarceration. Bryant
contends that the State failed to prove that he had the specific intent to kill
Bushrod and that his sentence is inappropriately harsh. Because we disagree
with both contentions, we affirm.
Facts and Procedural History
[2] On April 16, 2016, Charles Jones was on the porch of his Evansville home with
Bushrod and two other persons. At some point, Bryant arrived in his car and
shook Bushrod’s hand; shortly thereafter, Jones left, leaving Bryant and
Bushrod on the porch. Jones returned approximately half an hour later when
he heard a gunshot, and while he did not witness what had occurred, a
surveillance system caught the shooting from two angles. At some point after
Jones left, Bryant stood on the porch as if to leave, drew a handgun, walked
Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017 Page 2 of 7 over to Bushrod, and shot him in the chest. Bushrod fell out of his chair as the
others on the porch took cover.
[3] On April 18, 2016, the State charged Bryant with Level 1 felony attempted
murder and Level 5 felony possession of a firearm without a license. On
November 3, 2016, the jury found Bryant guilty of attempted murder, and the
State dismissed the possession of a firearm without a license charge. On
December 13, 2016, the trial court sentenced Bryant to thirty-five years of
incarceration. Bryant contends that the State failed to produce sufficient
evidence to sustain a finding that he intended to kill Bushrod when he shot him
and that his sentence is inappropriately harsh.
Discussion and Decision
I. Intent to Kill [4] Bryant contends that the State produced insufficient evidence to establish that
he intended to kill Bushrod when he shot him in the chest. When reviewing the
sufficiency of the evidence to support a conviction, we consider only the
probative evidence and reasonable inferences supporting the verdict. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder’s role to assess
witness credibility and weigh the evidence to determine whether it is sufficient
to support a conviction. Id. We consider conflicting evidence in the light most
favorable to the trial court’s ruling. Id. We affirm the conviction unless no
Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017 Page 3 of 7 reasonable fact-finder could find that the elements of the crime were proven
beyond a reasonable doubt. Id.
[5] To convict Bryant of Level 1 felony attempted murder, the State was required
to prove beyond a reasonable doubt that Bryant, while acting with the specific
intent to kill another person, engaged in conduct constituting a substantial step
toward the killing. Ind. Code §§ 35-41-5-1, 35-42-1-1; Blanche v. State, 690
N.E.2d 709, 712 (Ind. 1998). The heightened requirement of proof of specific
intent to kill in attempted murder cases is based upon the stringent penalties for
attempted murder and ambiguities often involved in proving such a charge.
Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015) (citing Hopkins v. State, 759 N.E.2d
633, 637 (Ind. 2001)).
[6] The jury may infer specific intent to kill from “the nature of the attack and the
circumstances surrounding the crime.” Kiefer v. State, 761 N.E.2d 802, 805
(Ind. 2002). Intent to kill may be inferred “from the use of a deadly weapon in
a manner likely to cause death or great bodily injury.” Id. (citation omitted).
“Further, our supreme court has held that discharging a weapon in the direction
of a victim is substantial evidence from which the jury could infer intent to kill.”
Corbin v. State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006) (citing Leon v. State,
525 N.E.2d 331, 332 (Ind. 1988)). Moreover, where discharge of a firearm is
concerned, the distance between the defendant and victim is also a relevant
consideration in determining whether the defendant specifically intended to kill
the victim. See Richeson v. State, 704 N.E.2d 1008, 1010 (Ind. 1998).
Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017 Page 4 of 7 [7] The surveillance footage shows that Bryant draw a handgun, stood up, moved
in Bushrod’s direction, aimed the gun at Bushrod’s chest, and fired at very
nearly point-blank range. After shooting Bushrod, Bryant ran to his car and
drove off. The surveillance video clearly shows Bryant using a deadly weapon
in a way likely to cause death or serious injury, i.e., deliberately shooting
Bushrod in the chest from no more than a couple of feet away. From this
evidence, the jury was entitled to infer the specific intent to kill. Bryant argues
that the record as a whole fails to establish the specific intent to kill because
Bushrod did not testify that the conversation leading up to the shooting turned
“aggressive” or “to fighting[.]” Tr. p. 101. This, however, is an invitation to
reweigh the evidence, which we will not do. See Drane, 867 N.E.2d at 146.
Bryant has not established that the State failed to produce sufficient evidence to
sustain his conviction for attempted murder.
II. Inappropriateness of Sentence [8] We “may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Ind.
Appellate Rule 7(B). “Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special expertise of the
trial bench in making sentencing decisions, Appellate Rule 7(B) is an
authorization to revise sentences when certain broad conditions are satisfied.”
Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations
and quotation marks omitted). “[A] person who commits a Level 1 felony (for
Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017 Page 5 of 7 a crime committed after June 30, 2014) shall be imprisoned for a fixed term of
between twenty (20) and forty (40) years, with the advisory sentence being
thirty (30) years.” Ind. Code § 35-50-2-4(b). As mentioned, the trial court
sentenced Bryant to thirty-five years of incarceration, or five years more than
the advisory sentence for Level 1 felony attempted murder.
[9] The nature of Bryant’s attempted murder is somewhat egregious to the extent
that it appeared to be premeditated and cold-blooded. Bryant arrived at Jones’s
house, shook Bushrod’s hand, and engaged him in conversation for almost a
half hour. Then, Bryant stood as if to leave, drew a firearm, and suddenly shot
Bushrod in the chest as he sat in a chair. Bryant immediately fled the scene and
then the jurisdiction; Bryant was eventually apprehended in Milwaukee,
Wisconsin. According to the surgeon who treated Bushrod, he was “very
lucky” to be alive and would have to live with the bullet in his chest due to the
danger of removing it. Tr. p. 120. The nature of Bryant’s offense could
reasonably justify his enhanced sentence.
[10] Bryant’s character also justifies an enhanced sentence. Bryant, twenty-three at
the time of the shooting, had already amassed a somewhat extensive criminal
record by the time he shot Bushrod. Between 2011 and 2015, Bryant was
convicted of three felonies and seven misdemeanors, which resulted in
probation and incarceration. Indeed, Bryant was on probation when he shot
Bushrod. Bryant was evaluated pursuant to IRAS-CST and found to be a “high
risk to re-offend.” Appellant’s Confidential App., Vol. II p. 87. Despite
Bryant’s frequent contacts with the criminal justice system, he has chosen not to
Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017 Page 6 of 7 reform himself; instead, his crimes have escalated from non-violent offenses to
attempted murder at the age of twenty-three. Bryant’s character reasonably
justifies his enhanced sentence. Bryant has failed to establish that his thirty-
five-year sentence for Level 1 Felony attempted murder is inappropriate in light
of the nature of his offense and his character.
[11] We affirm the judgment of the trial court.
Najam, J., and Riley, J, concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-41 | May 25, 2017 Page 7 of 7