MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 26 2017, 10:25 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marcus J. Gary, July 26, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1611-CR-2739 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Terry C. Appellee-Plaintiff. Shewmaker, Judge Trial Court Cause No. 20C01-1604-MR-3
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017 Page 1 of 7 Case Summary [1] Marcus J. Gary (“Gary”) was convicted of Murder, a Felony, 1 and sentenced to
a sixty-four-year prison term. He now appeals, raising for our review the sole
issue of whether his sentence is inappropriate under Appellate Rule 7(B).
[2] We affirm.
Facts and Procedural History [3] On the evening of April 17, 2016, Gary was socializing with his brother, James
Gary (“James”), and two of James’s friends, Lavelle Evans (“Evans”) and
Anon Burnett (“Burnett”). The four men were sitting on a porch outside of
James’s apartment in Elkhart.
[4] James routinely openly carried a 9mm semiautomatic pistol in a holster that he
wore at his side, and was wearing the holstered gun that day. Gary routinely
carried a bag with clothes and a .44 magnum revolver. Gary had the bag with
him on April 17, 2016, and the revolver was in his bag that day.
[5] At some point that evening, Gary, whom James and Anon observed to be
acting strangely, attempted to take the 9mm pistol from James’s holster. James
quickly removed the gun from Gary’s reach, re-holstered the gun, and told
Gary to leave. Gary agreed to leave and called someone to ask for a ride. After
1 Ind. Code § 35-42-1-1.
Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017 Page 2 of 7 this, James, whose infant child was inside the apartment, entered the apartment
to prepare a bottle for the child.
[6] While James was inside the apartment, Gary drew his revolver from his bag
and, without any apparent warning, fired his gun at Evans, striking Evans in
the head. Burnett, who had been looking away from the two men and towards
a party across the street, felt the disruption of air from the firing of the gun.
Burnett turned and saw Evans fall from the chair in which he had been sitting,
and saw Gary running away. James rushed from the apartment, called 911,
and attempted to pursue Gary, who was running in the direction of James’s and
Gary’s mother’s home, but Gary escaped.
[7] Evans died at the scene.
[8] Around midnight, Gary appeared at the home of a cousin, Wayne Barham
(“Barham”), and the two men used marijuana together. At some point during
Gary’s visit, he admitted to Barham that he had shot Evans.
[9] On the morning of April 18, 2016, Gary contacted his sometime-girlfriend,
Meghan Zimmerman (“Zimmerman”), and asked her to pick him up from
Barham’s apartment. Zimmerman did so and transported Gary back to her
apartment. Zimmerman knew that something had happened at James’s home,
and eventually persuaded Gary to allow her to take him to the Elkhart Police
Department. Gary agreed to Zimmerman’s request. Zimmerman took Gary to
the police station and, after being interviewed at the police station, Gary was
arrested.
Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017 Page 3 of 7 [10] On April 25, 2016, the State charged Gary with Murder.
[11] Gary waived his right to a jury trial, and the case proceeded to a bench trial on
August 29 and 30, 2016. At the end of the trial, the court took the matter under
advisement. On September 23, 2016, the trial court found Gary guilty as
charged and entered a judgment of conviction against him.
[12] On October 13, 2016, a sentencing hearing was conducted. At the close of the
hearing, the trial court reiterated its entry of judgment against Gary, and
sentenced him to sixty-four years imprisonment, with recommendations that
Gary receive substance abuse and mental health treatment while incarcerated.
[13] This appeal ensued.
Discussion and Decision [14] Gary raises for our review the sole question of whether the sixty-four-year
sentence that the trial court imposed upon him was inappropriate. The
authority granted to this Court by Article 7, section 6 of the Indiana
Constitution permitting appellate review and revision of criminal sentences is
implemented through Appellate Rule 7(B), which provides: “The Court 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.” Under this rule, and as
interpreted by case law, appellate courts may revise sentences after due
consideration of the trial court’s decision, if the sentence is found to be
Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017 Page 4 of 7 inappropriate in light of the nature of the offense and the character of the
offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,
798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to
attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.
[15] Gary was convicted of Murder, a Felony. The sentencing range for murder
runs from forty-five to sixty-five years imprisonment, with an advisory term of
fifty-five years. I.C. § 35-50-2-3(a). Gary was sentenced to a term of sixty-four
years, one year below the maximum term of imprisonment, and in his appeal
requests that we conclude that his sentence was inappropriate and asks that we
revise his sentence downward to the advisory term of fifty-five years.
[16] Looking first to the nature of the offense, our review of the record discloses that
Gary was present at a social gathering at his brother James’s home. Shortly
before committing the offense of Murder, Gary attempted to take James’s gun.
When told to leave, Gary made a phone call, but remained at James’s home.
While James was inside tending to his infant child, Gary took out his own gun
and shot Evans in the head. Burnett, a friend of James and Evans, was close
enough to feel the disruption of air caused by the gunshot although at the
moment his attention was directed toward an outdoor party across the street
from the scene. Gary then fled and, later that night, consumed marijuana and
admitted to having shot Evans.
[17] As a result of the shooting, Evans, with whom Gary had no prior conflict or
quarrel, died; the shooting, then, had no apparent motivation. Moreover, the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 26 2017, 10:25 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marcus J. Gary, July 26, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1611-CR-2739 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Terry C. Appellee-Plaintiff. Shewmaker, Judge Trial Court Cause No. 20C01-1604-MR-3
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017 Page 1 of 7 Case Summary [1] Marcus J. Gary (“Gary”) was convicted of Murder, a Felony, 1 and sentenced to
a sixty-four-year prison term. He now appeals, raising for our review the sole
issue of whether his sentence is inappropriate under Appellate Rule 7(B).
[2] We affirm.
Facts and Procedural History [3] On the evening of April 17, 2016, Gary was socializing with his brother, James
Gary (“James”), and two of James’s friends, Lavelle Evans (“Evans”) and
Anon Burnett (“Burnett”). The four men were sitting on a porch outside of
James’s apartment in Elkhart.
[4] James routinely openly carried a 9mm semiautomatic pistol in a holster that he
wore at his side, and was wearing the holstered gun that day. Gary routinely
carried a bag with clothes and a .44 magnum revolver. Gary had the bag with
him on April 17, 2016, and the revolver was in his bag that day.
[5] At some point that evening, Gary, whom James and Anon observed to be
acting strangely, attempted to take the 9mm pistol from James’s holster. James
quickly removed the gun from Gary’s reach, re-holstered the gun, and told
Gary to leave. Gary agreed to leave and called someone to ask for a ride. After
1 Ind. Code § 35-42-1-1.
Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017 Page 2 of 7 this, James, whose infant child was inside the apartment, entered the apartment
to prepare a bottle for the child.
[6] While James was inside the apartment, Gary drew his revolver from his bag
and, without any apparent warning, fired his gun at Evans, striking Evans in
the head. Burnett, who had been looking away from the two men and towards
a party across the street, felt the disruption of air from the firing of the gun.
Burnett turned and saw Evans fall from the chair in which he had been sitting,
and saw Gary running away. James rushed from the apartment, called 911,
and attempted to pursue Gary, who was running in the direction of James’s and
Gary’s mother’s home, but Gary escaped.
[7] Evans died at the scene.
[8] Around midnight, Gary appeared at the home of a cousin, Wayne Barham
(“Barham”), and the two men used marijuana together. At some point during
Gary’s visit, he admitted to Barham that he had shot Evans.
[9] On the morning of April 18, 2016, Gary contacted his sometime-girlfriend,
Meghan Zimmerman (“Zimmerman”), and asked her to pick him up from
Barham’s apartment. Zimmerman did so and transported Gary back to her
apartment. Zimmerman knew that something had happened at James’s home,
and eventually persuaded Gary to allow her to take him to the Elkhart Police
Department. Gary agreed to Zimmerman’s request. Zimmerman took Gary to
the police station and, after being interviewed at the police station, Gary was
arrested.
Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017 Page 3 of 7 [10] On April 25, 2016, the State charged Gary with Murder.
[11] Gary waived his right to a jury trial, and the case proceeded to a bench trial on
August 29 and 30, 2016. At the end of the trial, the court took the matter under
advisement. On September 23, 2016, the trial court found Gary guilty as
charged and entered a judgment of conviction against him.
[12] On October 13, 2016, a sentencing hearing was conducted. At the close of the
hearing, the trial court reiterated its entry of judgment against Gary, and
sentenced him to sixty-four years imprisonment, with recommendations that
Gary receive substance abuse and mental health treatment while incarcerated.
[13] This appeal ensued.
Discussion and Decision [14] Gary raises for our review the sole question of whether the sixty-four-year
sentence that the trial court imposed upon him was inappropriate. The
authority granted to this Court by Article 7, section 6 of the Indiana
Constitution permitting appellate review and revision of criminal sentences is
implemented through Appellate Rule 7(B), which provides: “The Court 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.” Under this rule, and as
interpreted by case law, appellate courts may revise sentences after due
consideration of the trial court’s decision, if the sentence is found to be
Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017 Page 4 of 7 inappropriate in light of the nature of the offense and the character of the
offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,
798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to
attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.
[15] Gary was convicted of Murder, a Felony. The sentencing range for murder
runs from forty-five to sixty-five years imprisonment, with an advisory term of
fifty-five years. I.C. § 35-50-2-3(a). Gary was sentenced to a term of sixty-four
years, one year below the maximum term of imprisonment, and in his appeal
requests that we conclude that his sentence was inappropriate and asks that we
revise his sentence downward to the advisory term of fifty-five years.
[16] Looking first to the nature of the offense, our review of the record discloses that
Gary was present at a social gathering at his brother James’s home. Shortly
before committing the offense of Murder, Gary attempted to take James’s gun.
When told to leave, Gary made a phone call, but remained at James’s home.
While James was inside tending to his infant child, Gary took out his own gun
and shot Evans in the head. Burnett, a friend of James and Evans, was close
enough to feel the disruption of air caused by the gunshot although at the
moment his attention was directed toward an outdoor party across the street
from the scene. Gary then fled and, later that night, consumed marijuana and
admitted to having shot Evans.
[17] As a result of the shooting, Evans, with whom Gary had no prior conflict or
quarrel, died; the shooting, then, had no apparent motivation. Moreover, the
Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017 Page 5 of 7 shooting resulted in Burnett, who already suffered from post-traumatic stress,
experiencing increased levels of trauma as a result of the shooting. Gary’s use
of a firearm posed a risk to numerous other individuals present that day, as
well.
[18] We turn now to the nature of Gary’s character. Our review of the record
discloses that Gary did not finish high school, and experienced disciplinary
problems while enrolled in school. As a minor, Gary had extensive interactions
with the juvenile justice system, including two delinquency adjudications for
Battery, and one delinquency adjudication for Disorderly Conduct. Gary’s
final contact with the juvenile system resulted in a case being waived into adult
court jurisdiction, and he was ultimately convicted of Robbery in that case, was
incarcerated, and failed to successfully complete probation. He subsequently
committed felony-level offenses of Receiving Stolen Property and Criminal
Recklessness, and was convicted of misdemeanor-level offenses of Resisting
Law Enforcement, Illegal Possession of an Alcoholic Beverage, Battery, False
Informing, and Unlawful Gambling. In numerous of these cases, his probation
was revoked.
[19] During the presentencing investigation, Gary admitted to having had a prior
affiliation with a gang. He was last employed in 2014. Gary acknowledged
that he had been diagnosed as schizophrenic in 2012, but had discontinued
medication. Gary further admitted to daily use of marijuana, beginning at age
fifteen. He also admitted to use of methamphetamine beginning in 2012, and
stated that the last day he used methamphetamine was the day of his arrest—
Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017 Page 6 of 7 one day after the murder of Evans. Gary was afforded addiction treatment
while incarcerated in 2012, but apparently did not benefit from that treatment.
[20] In Gary’s favor, he voluntarily surrendered to police. Yet that by itself does not
persuade us that the nature of his offense and his character are such that the
trial court’s imposition of a sentence near the statutory maximum was
inappropriate.
[21] Affirmed.
Vaidik, C.J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1611-CR-2739 | July 26, 2017 Page 7 of 7