MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 31 2018, 9:44 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Karen M. Heard Curtis T. Hill, Jr. Vanderburgh County Attorney General of Indiana Public Defender’s Office Evan Matthew Comer Evansville, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gerald Duane Lewis, December 31, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1315 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Michael J. Cox, Magistrate Trial Court Cause No. 82C01-1607-F1-4056
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 1 of 14 [1] Gerald Duane Lewis (“Lewis”) appeals his thirty-six-year sentence following
his guilty plea for Level 1 felony attempted murder.1 On appeal, he raises the
following restated issues:
I. Whether the trial court abused its discretion when it did not recognize certain mitigating factors; and
II. Whether, under Appellate Rule 7(B), Lewis’s sentence is inappropriate in light of the nature of the offense and the character of the offender.
[2] We affirm.2
Facts and Procedural History3 [3] Lewis did not know Crystal Cash (“Cash”) but, on the afternoon of July 10,
2016, the two had a “random” encounter at the intersection of North First
Avenue and West Columbia Street in Evansville, Vanderburgh County,
Indiana. Appellant’s Conf. App. Vol. II at 83. The two began to chat and Cash,
who is a transgender woman, invited Lewis to come to the massage parlor that
she ran out of an office building on North First Street, a location that also
1 See Ind. Code §§ 35-42-1-1(1); 34-41-5-1. 2 Responding to a request for restitution, the trial court also entered a $76,291.97 civil judgment in favor of the victim. Lewis does not appeal that judgment. Tr. Vol. II at 29. 3 To establish the facts of this case, we, like the State, cite in part to the probable cause affidavit. Appellant’s. Conf. App. Vol. II at 83-84. The probable cause affidavit was attached to the presentence investigation report and is also cited by Lewis in his appellant’s brief. Id. at 83-84; Appellant’s Br. at 8-10.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 2 of 14 served as her personal residence. Id. Lewis wore combat boots and an “Israeli
Christian” shirt with gold fringe and had tattoos on both of his arms. Later
investigation revealed that Lewis was a member of a “black nationalist hate
group” known as “Israel United in Christ.” Id. at 43, 68. Initially, Lewis
appeared to be “very nice,” complementing Cash on her vehicle and asking her
questions about herself and her job. Id. Once inside the office, Cash showed
Lewis her business website. Id. at 84. Soon after, Lewis attempted to enter
restricted areas of the office, which were closed off from the office; he also used
the restroom. Id. Lewis seemed to be in the restroom for a long time, and
when he came out, he had “turned into a monster.” Id. Cash fled to her
bedroom, but Lewis followed her, pulled out a gun, and shot Cash in the face,
yelling “die, die faggot.” Id. Cash pretended to be dead while Lewis stole all
forms of her identification, including her passport, several credit cards and the
keys to Cash’s office. Id. Lewis then left.
[4] Cash called 911 and informed dispatch that she had been shot. When police
and medical personnel arrived on the scene, they found Cash lying on the front
steps of the office building with a gunshot wound on the left side of her face. Id.
at 83. Cash had difficulty speaking and was unable to provide information to
investigators. Police followed a trail of blood splatters into Cash’s office and
later, after obtaining a search warrant, found a “spent F.C. 9 mm Lugar shell
casing” in Cash’s bedroom. Id. at 83.
[5] Paramedics transported Cash to Deaconess Hospital in Evansville where she
was treated for her wound. Id. Investigating officers attempted to speak with
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 3 of 14 Cash at the hospital, but she was intubated and unable to speak. Id. Through
written communications, however, Cash was able to describe Lewis to police.
That information enabled police to find Lewis and the gun he used to shoot
Cash. Lewis had no permit for the gun. The police arrested Lewis.
[6] On July 13, 2016, the State charged Lewis with Level 1 felony attempted
murder, Level 2 felony robbery resulting in serious bodily injury, and Class A
misdemeanor carrying a handgun without a license. The advisory sentences for
the Level 1 and Level 2 counts were thirty years and seventeen and a half years,
respectively. The State also filed a sentence enhancement alleging that Lewis
committed the underlying offense of attempted murder while using a firearm.
In September 2016, at defense counsel’s request, the trial court ordered Lewis to
submit to a psychological examination to determine his competence to stand
trial.
[7] Lewis was first examined by a psychologist, Dr. Frederick Nolen (“Dr. Nolen”)
on September 27, 2016. Dr. Nolen diagnosed Lewis with provisional
dissociative identity disorder, major neurocognitive disorder, suspected child
physical abuse, suspected child sexual abuse, post-traumatic stress disorder, and
alcohol use disorder. Id. at 33. Dr. Nolen concluded that Lewis was not
competent to stand trial at that time because his dissociative identity disorder
and major neurocognitive disorder would make it impossible for him to
mentally track the proceedings, understand their significance, and participate in
his own defense. Id. at 33-34.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 4 of 14 [8] Lewis was examined by Dr. David Cerling (“Dr. Cerling”) on October 14, 2016
and November 3, 2016. Dr. Cerling determined that Lewis was able to
“identify the charges against him as including attempted murder, robbery, and
having an unlicensed handgun.” Id. at 40. Lewis told Dr. Cerling that he could
not recall the incident leading to the charges and said that the incident as
described to him was “totally inconsistent with his behavior.” Id. at 41. While
Dr. Cerling concluded that it appeared “likely that [Lewis] does have a
significant mental illness,” he stopped short of offering a diagnosis, noting “the
defendant displayed no clear indications of a thought disorder.” Id. at 42. Dr.
Cerling observed that “the defendant is endorsing symptoms that are also quite
atypical and inconsistent with psychotic disorders.” Id. Dr. Cerling concluded,
“It appears highly probable . . . that [Lewis] has an age-appropriate factual and
rational understanding of court principles and procedures relevant to the
charges he is facing in court. He understands the basis of the charges against
him, although he states he has no recollection of the reported incident.” Id.
[9] Lewis filed a request for a sanity evaluation. The trial court granted the request
and ordered Lewis to undergo a sanity evaluation with Dr. Cerling. Following
his additional assessments and interview of Lewis, Dr. Cerling reiterated that
Lewis was “overreporting symptoms” and stated that he was unable to issue a
definitive diagnosis. Id. at 44. Dr. Cerling wrote, “In light of potential
overreporting of symptoms as well as reported amnesia for the events, any
definitive opinion regarding his ability to perceive wrongfulness at the time of
the event cannot be reached.” Id. at 44. In March 2017, the trial court
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 5 of 14 determined that Lewis was not competent to stand trial and temporarily stayed
the proceedings. Id. at 45. Lewis was then transported to the Logansport State
Hospital where he received inpatient mental health treatment. Id. at 72.
[10] On September 27, 2017, psychologist Dr. Megan O’Grady (Dr. O’Grady”)
examined Lewis and issued a report finding that Lewis was competent to stand
trial. Id. at 72. Dr. O’Grady reported that Lewis did not appear to meet the
criteria for the “previous diagnoses [by Dr. Nolen] of Dissociative Identity
Disorder, Major Neurocognitive Disorder Due to TBI, and Posttraumatic Stress
Disorder. Id. at 77. She also concluded that a more precise diagnosis was not
possible because, “[w]hile hallucinations and delusions are typical features of
Schizophrenia, there are a number of factors that do argue against such a
diagnosis, such as the discrepancy between [Lewis’s] self-report and
observations by others, a course of illness that is inconsistent with that which is
typically seen in Schizophrenia, and multiple recent test scores suggesting
exaggeration of symptoms.” Id.
[11] On October 5, 2017, after the trial court determined that Lewis was competent
to stand trial, he was transported to the Vanderburgh County Jail. On February
14, 2018, Lewis pleaded guilty to Level 1 felony attempted murder, and the
State agreed to dismiss the remaining two counts and the sentencing
enhancement. The plea agreement was open regarding sentencing but
contained the question, “Are you aware that the maximum possible sentence in
this case is 40 years and the minimum possible sentence is 20 years with a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 6 of 14 possible fine of up to $10,000?” Appellant’s Conf. App. Vol. II at 63. Lewis
marked “yes” to this question and signed the plea agreement. Id.
[12] The trial court accepted Lewis’s plea. A sentencing hearing was held in May
2018, during which the trial court considered Lewis’s PSI, a letter filed by Cash,
comments of Lewis, and reports of the psychologists who had performed the
mental health evaluations. At the close of arguments, the trial court made the
following sentencing statement:
Upon that conviction, the Court does note that there are mitigating and aggravating factors. The Court does acknowledge that the defendant has no criminal history, and that he has expressed his remorse and accepted his responsibility; however, the Court does not find that the crime occurred under circumstances unlikely to reoccur, nor does the Court find that the defendant acted under strong provocation. I don’t know, and I don’t know that anyone here in the Courtroom knows, why the defendant acted as he did, but the result of his actions are that we have a victim who has been significantly harmed and injured, and the injury and harm to the victim are much greater than the elements necessary to prove the commission of the offense. What amounts to a completely unprovoked shooting of the victim in the face, which resulted in the victim losing much of the use of her bone and muscles in her face, and that has caused innumerable issues for the victim just to chew her food or to speak, among other things. The Court does not find any grounds tending to excuse or justify this crime but, again, the Court did consider the defendant is pleading guilty, and thereby saving the State valuable time and resources. The Court finds the aggravating circumstances do outweigh the mitigating, and the Court now sentences [Lewis] in Count I to the Indiana Department of Correction for a period of thirty-six (36) years, that sentence is to be served executed.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 7 of 14 Sentencing Tr. at 25-26 (emphasis added). Lewis now appeals his sentence.
Discussion and Decision
I. Mitigating Factors [13] Lewis contends that the trial court abused its discretion during sentencing when
it did not consider certain mitigating circumstances. Sentencing decisions rest
within the sound discretion of the trial court and are reviewed only for an abuse
of discretion. Green v. State, 65 N.E.3d 620, 635 (Ind. Ct. App. 2016) (citing
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)), trans. denied (2017). “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. at 635-36 (quoting Anglemyer,
868 N.E.2d at 490). A trial court may be found to have abused its sentencing
discretion by: (1) failing to enter a sentencing statement; (2) entering a
sentencing statement that cites reasons unsupported by the record; (3) entering a
sentencing statement that omits reasons that are clearly supported by the record
and that were advanced by the defendant; and (4) entering a sentencing
statement in which the reasons given are improper as a matter of law. Id. at
636.
[14] On appeal, Lewis claims that the trial court abused its discretion during
sentencing when it did not give sufficient consideration to Lewis’s: (1) lack of
criminal history; (2) decision to plead guilty; and (3) expression of remorse.
Appellant’s Br. at 13-14. He also contends that the trial court abused its
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 8 of 14 discretion when it “did not even mention Lewis’s mental illness” as a mitigating
circumstance. Id. at 12.
[15] The trial court is not required to find mitigating factors, nor is it obligated to
accept as mitigating each of the circumstances proffered by the defendant.”
Green, 65 N.E.3d at 636. “The relative weight or value assignable to reasons
properly found, or those that should have been found, is not subject to review
for abuse of discretion.” Id. A trial court abuses its discretion in sentencing if it
overlooks “substantial” mitigating factors that are “clearly supported by the
record.” Id. (citing Anglemyer, 868 N.E.2d at 491). The burden is on the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. Id.
[16] We disagree with Lewis’s contention that the trial court did not give sufficient
consideration to his: (1) lack of criminal history; (2) decision to plead guilty;
and (3) expression of remorse as mitigating circumstances. At the close of the
sentencing hearing, the trial court specifically identified these three mitigating
circumstances, discussed aggravating circumstances, and specifically found that
the “aggravating circumstances do outweigh the mitigating” circumstances.
Sentencing Tr. at 26 (emphasis added). We may not consider whether a trial
court abused its discretion when it determined the relative weight or value
assignable to reasons properly found, or those that should have been found. See
Green, 65 N.E.3d at 636. We find no abuse of discretion regarding these three
factors.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 9 of 14 [17] Likewise, we find no abuse of discretion regarding the trial court’s handling of
Lewis’s mental health history. Lewis argues that the trial court abused its
discretion when it “did not even mention Lewis’s mental illness” as a mitigating
circumstance. Appellant’s Br. at 12. Three psychologists examined Lewis
during the State’s investigation and prosecution. Dr. Cerling reported that
Lewis’s “responses on the M-FAST and the SlMS reflect a pattern of reporting
symptomatology that is inconsistent with typical presentations for a psychotic
disorder, an affective disorder, or some type of neurologic impairment, such as
amnesia.” Appellant’s Conf. App. Vol. II at 41. Doctors Cerling and O’Grady
determined that Lewis had overreported his symptoms, and therefore, they
were unable to conclusively diagnose Lewis’s condition or conditions. Id. at 44.
The only nexus presented to show a connection between Lewis’s mental illness
and his having committed attempted murder was presented by defense counsel
when, during the sentencing hearing, he said that Lewis’s attack was triggered
by sexual contact with Cash. Tr. Vol. II at 19. This statement, however, is mere
conjecture, and Lewis provided no evidence to substantiate that claim. Id. at
18-19. The evidence does not establish that Lewis’s history of mental illness
was in any way connected to his decision to attack Cash.
[18] The trial court was well aware of Lewis’s mental health history and ordered
numerous mental health evaluations of Lewis to determine whether he knew
what he was doing when he committed the crime and whether he was
competent to stand trial. A “trial court is not required to find mitigating factors,
nor is it obligated to accept as mitigating each of the circumstances proffered by
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 10 of 14 the defendant.” Green, 65 N.E.3d at 636. The trial court did not abuse its
discretion in its consideration of mitigating circumstances.
II. Inappropriate Sentence [19] Lewis also contends that his thirty-six-year executed sentence is inappropriate.
Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
[c]ourt finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Our Supreme Court has explained
that the principal role of appellate review should be to attempt to leaven the
outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008); Yoakum v. State, 95 N.E.3d 169, 176
(Ind. Ct. App. 2018), trans. denied. We independently examine the nature of
Lewis’s offense and his character under Appellate Rule 7(B) with substantial
deference to the trial court. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015).
“[W]e do not look to see whether the defendant’s sentence is appropriate or if
another sentence might be more appropriate; rather, the test is whether the
sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.
2013), trans. denied. Whether a sentence is inappropriate ultimately depends
upon “the culpability of the defendant, the severity of the crime, the damage
done to others, and a myriad of other factors that come to light in a given case.”
Cardwell, 895 N.E.2d at 1224. Lewis bears the burden of persuading us that his
sentence is inappropriate in light of the nature of the offense and his character.
Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 11 of 14 [20] “The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation.” Croy v. State, 953
N.E.2d 660, 664 (Ind. Ct. App. 2011). Lewis admits that “[t]here is no doubt
that the nature of the offense is very serious” and that “[t]he crime of attempted
murder is extreme.” Appellant’s Br. at 15. The Indiana General Assembly
recognized these factors when it established a sentencing range of twenty to
forty years with an advisory sentence of thirty years. Id. Lewis contends that
he “is not arguing that the offense is not serious but rather that thirty-six years,
which is six years over the advisory, is inappropriate. Id. We are not
persuaded.
[21] Lewis pleaded guilty to attempted murder under the following circumstances.
Lewis randomly met Cash on the street, the two chatted in a friendly way, and
Lewis went willingly with Cash to her office building, which also served as her
home. Lewis used the restroom. Cash said that Lewis seemed to be in the
restroom for a long time, and that when he came out, he had “turned into a
monster.” Appellant’s Conf. App. Vol. II at 84. Cash fled to her bedroom, but
Lewis followed her, pulled out a gun, and shot Cash in the face, yelling “die,
die faggot.” Id. Lewis left Cash for dead while he stole all forms of ID,
including her passport, several credit cards and the keys to Cash’s office. Id.
[22] Cash was the victim of an unprovoked shooting. Sentencing Tr. at 84-85. She
was hospitalized for about one month, underwent two emergency surgeries,
had a complete blood transfusion, had her jaws wired shut, was placed on a
breathing machine, and had a feeding tube inserted into her abdomen.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 12 of 14 Appellant’s Conf. App. Vol. II at 99. Cash suffered lasting physical damage
including partial loss of her tongue, jaw bone and teeth, nerve damage, and
pain. Id. She has developed a speech impediment and has a small hole in the
left side of her face that, as of the sentencing hearing, had not healed. Id.
Lewis’s actions resulted in a “victim who has been significantly harmed and
injured, and the injury and harm to the victim are much greater than the
elements necessary to prove the commission of the offense.” Id. at 84. The
nature of the offense does not warrant a revision of Lewis’s sentence.
[23] Regarding his character, Lewis contends that his sentence is inappropriate
because he suffers from mental health issues, has no criminal history, showed
remorse, and pleaded guilty. The State counters that whatever good character
Lewis has is outweighed by his membership in “Israel United in Christ,” a
“black nationalist hate group.” Id. at 43, 68. When Lewis shot Cash, he
shouted, “die, die faggot.” Id. at 13. Lewis wanted to kill Cash. Id. at 83.
During the sentencing hearing, Lewis told the trial court that he had no
knowledge of Cash’s gender identity when he shot her and said that his use of
the word “faggot” was “just an exaggeration.” Sentencing Tr. at 25. However,
defense counsel admitted that Lewis’s membership in “Israel United in Christ”
may have played a role in the shooting, saying, “Perhaps the teachings of that
group planted a seed, a negative seed, toward transgendered individuals in my
client’s brain, but his actions were not at the direction or involved with that
group at all.” Id. at 21. Furthermore, Lewis’s use of the homophobic slur
suggests that he had knowledge of Cash’s sexual and gender identities at the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 13 of 14 time of the shooting. The record establishes that Lewis committed a targeted
act of violence. We do not believe that Lewis’s character warrants a revision of
his sentence.
[24] Our task on appeal is not to determine whether another sentence might be more
appropriate; rather, the inquiry is whether the imposed sentence is
inappropriate. Barker, 994 N.E.2d at 315. Lewis has failed to carry his burden
of establishing that his sentence is inappropriate in light of the nature of the
offense and his character.
[25] Affirmed.
Riley, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 14 of 14