MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 31 2020, 10:34 am
court except for the purpose of establishing CLERK Indiana Supreme Court 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 Elizabeth A. Bellin Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael R. Ortiz, March 31, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1670 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Michael A. Appellee-Plaintiff. Christofeno, Judge Trial Court Cause No. 20C01-1709-F1-7
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 1 of 19 [1] Michael R. Ortiz appeals his convictions for three counts of attempted murder
as level 1 felonies. He raises three issues:
I. Whether the evidence is sufficient to sustain his convictions;
II. Whether the trial court erred by declining to provide his proposed instruction about criminal recklessness as a lesser-included offense; and
III. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
We affirm.
Facts and Procedural History
[2] Formed in 2016, Sinland is an organization comprised of individuals who “love
to ride motorcycles.” 1 Transcript Volume IV at 175. After bringing Sinland to
Elkhart, Indiana, from the California-based mother chapter, “Sinland IE” or
“Inland Empire,” Ortiz served as the president of the Elkhart chapter and
recruited new members. Id. at 243.
1 A tightknit group “like family,” Sinland has requirements to become a member, as well as its own clothing, patches, and “saying,” which proclaims: Bikers know they don’t live forever. Each day they ride, they take a stand for their personal freedom. It’s how they hold their ground. Bikers don’t allow others to decide who and what they are. They’re bikers. Transcript Volume IV at 245-246.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 2 of 19 [3] Ortiz’s friend for ten years, Jimmie Lawson, began a relationship at some point
with Linsey Hinegardner. 2 Her then-husband, John Hinegardner, verbally
confronted Lawson about the relationship once but left following a brief
exchange, and he contacted Lawson’s ex-wife and discussed the relationship.
[4] Following their divorce, “it was like a light switch turned off” between John
and Linsey. Transcript Volume III at 9. A couple of days before June 17, 2017,
John’s nephew, Dustyn Knisley, drove him to a house on Rogers Road at
which John and Linsey had lived and which she was awarded in the divorce,
and they sought to retrieve a truck he had been awarded. The truck had motor
issues, and John and Knisley planned to “tow chain it off the property.” Id. at
18. John knocked on the door and told Linsey he was there to retrieve the
truck, Linsey disputed his claim to it and “kind of went off,” and John left. Id.
John and Knisley returned a second time and obtained permission from
Linsey’s neighbor to drive through his property and access the truck. As John
attached jumper cables, Linsey emerged from the house with “some kind of,
like, a butter knife or steak knife,” stated she was “gonna stab the tires and all
that,” and was “on the phone the whole time, texting, calling people.” Id. at
20-21. After Linsey “coldcocked [John] in the head,” Ortiz, who John had
never previously met, pulled in and exited his vehicle, John and Knisley left in
2 At trial, Linsey was often referred to by her maiden name, Linsey Vanator.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 3 of 19 Knisley’s vehicle without obtaining the truck, and John watched Ortiz stand “at
the end of the driveway with Linsey as [they] drove by.” 3 Id. at 21.
[5] On June 17, 2017, Lawson was “patched in” as a member of Sinland, an event
which was a “big deal.” Transcript Volume IV at 245. During the late
afternoon of the same day when it was light out, John drove Knisley’s truck,
with Knisley in the passenger seat and John’s friend, Sarah Marchbanks, in the
rear passenger seat, to the New Paris Speedway racetrack. Passing a tavern,
John saw motorcycles “on the right-hand side sitting there on the side of the
road” and commented to Knisley that a man who stood by them looked like
Lawson. Transcript Volume III at 34. He looked in his rearview mirror and
saw “all these other bikes take off” and begin “chasing [Knisley’s truck] down.”
Id. Approximately six motorcycles drove around the truck, and John saw from
a distance of “10, 12 feet” Ortiz remove a gun with his right hand as he passed
in the passing lane as the lead motorcyclist, place it between his legs, and
“throttle[] on.” 4 Id. at 36-38. Ortiz was without a helmet and wore a Sinland
vest. Lawson and Linsey rode together on the rear motorcycle.
[6] John noted Ortiz’s gun and slowed and stopped the truck. The motorcyclists
stopped and gathered at the intersection beyond where the truck had stopped,
3 John and Knisley later returned to the house a third time, successfully recovered the truck, and noticed a broken rear window and that the ignition switch “had been broken out of” it – damage of which John had been previously unaware. Transcript Volume III at 92. 4 At trial, Ortiz testified he was “in the lead,” or front, and stated, “Because I’m the president,” in response to follow-up questioning. Transcript Volume IV at 248.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 4 of 19 “five of the bikes came back towards the truck,” and “[o]ne bike stayed back.”
Id. at 42. Traffic could not “get through” the two-lane road because of the
placement of the motorcycles which were in front of the truck and off to the
side. Id. at 70. Lawson and Linsey stopped their motorcycle right next to the
truck, Linsey started “hollering,” and John told Marchbanks to call 911 so he
could “focus on what was going on.” Id. at 42, 72. Ortiz, who had parked at
the intersection, heard the argument and raised his hands and a gun in the air.
A motorcyclist positioned a bike “into the front of [the] truck from blocking it
from . . . running,” and another was on the side. Id. at 112.
[7] Indicating to Knisley, “Hold on” and “We’re out of here,” John drove around
the bike in front of the truck. Id. at 42. “[S]cared a little bit,” he drove down
into a drainage ditch and back onto the road. Id. at 73. Ortiz “took off” driving
in the direction of the truck in the opposite lane of traffic. Id. at 43. John saw
Ortiz pull his gun up and yelled, “Gun,” and Marchbanks looked at Ortiz
directly in the face. Id. All three occupants of the truck ducked, Ortiz fired his
gun “nine or ten” times as they went by, and John “kept [the truck] straight”
and did not cross the center line of the road. Id. at 46, 113. A bullet entered
through the open driver’s window and “went through the headrest in the
passenger seat,” and another bullet “went through [Marchbanks’s] ponytail”
but otherwise missed her. Id. at 178. Ortiz and the motorcyclists fled the scene.
[8] John turned the truck through the intersection and turned off the engine which
was leaking antifreeze and transmission fluid. John, Knisley, and Marchbanks
did not leave the scene and spoke with law enforcement when they arrived.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 5 of 19 Meanwhile, Ortiz and the motorcyclists returned in a “very aggressive, very
fast” pace to the house of an individual named Mike Weaver, placed a “whole
bunch” of motorcycles in the garage as they pulled into the driveway, placed
those that could not fit around the back of the garage, and removed and left the
vests they wore in the garage. Transcript Volume IV at 46.
[9] Reporting to the scene, Elkhart County Sheriff’s Officer Jay Peterson observed
seven “defects that were consistent with projectiles passing through the body of
the truck,” photographed the truck’s exterior and interior, and collected
projectiles. Transcript Volume II at 200. Elkhart County Sheriff’s Patrolman
Jesse Reust located four shell casings in a line west of the intersection, “as if
they had been moving down the roadway” within “probably 10, 15 yards of
each other.” Id. at 221-222.
[10] On September 19, 2017, the State charged Ortiz with three counts of attempted
murder as level 1 felonies. At the jury trial, the court admitted Officer Peterson’s
photographs illustrating the truck’s defects as State’s Exhibits 2-31. Forensic
specialist Randy Mockler testified that he conducted a shooting reconstruction on
the truck to determine the directionality of the rounds fired and the possible
distance from the truck when fired, the court admitted photographs documenting
his investigation as State’s Exhibits 93-130, and Mockler testified about the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 6 of 19 reconstruction analyses conducted on the truck. 5 Knisley testified he had seen
Ortiz once prior to the shooting at “the house off of Rogers Road” and answered
affirmatively when asked if he “g[o]t a clear look” at the person who fired the
shots. Transcript Volume III at 89, 113. He indicated his mental state for the
two months following the incident was “pretty erratic” and that he suffered
sleepless nights. Id. at 116. During cross-examination, Marchbanks answered,
“Difficult,” when asked whether the tint on the windows in Knisley’s truck made
it either difficult or impossible for someone standing outside to see inside and
determine if somebody was seated in the vehicle. Id. at 192. When asked if she
recalled making any sort of visual eye contact with the individual that was
holding the gun, she stated: “Before I ducked, I remember looking him right in
the face.” Id. at 203. During his testimony, Ortiz described the truck’s
movement and indicated that, by the time the truck “comes out the ditch” and
was “back on pavement,” “we’re side by side.” Transcript Volume IV at 235.
[11] After the defense rested, Ortiz’s counsel indicated she requested an instruction
on the lesser-included Criminal Recklessness as a Level 6 Felony. The Court has declined to give that instruction. I had previously indicated I do believe that Criminal Recklessness as a Level 6
5 Specifically, Mockler referenced State’s Exhibits 125 and 126, photographs of a “placard F” that identified a “perforation that went into” the side of the truck’s bed and exited the bed’s front, and indicated that the projectile had a right-to-left trajectory which was “not quite straight on” and was “82 degrees off center” and had a downward angle of three degrees. Transcript Volume IV at 74. Referencing State’s Exhibits 127 and 129, photographs of “G . . . a hole made by a projectile towards” the back of the bed and “showing G with a trajectory rod . . . showing the path” of the bullet’s trajectory, he testified that the projectile had a forty-nine degree right-to-left trajectory and a slight upward angle of one degree. Id. at 75. He explained that State’s Exhibit 118 was a photograph of an area of trajectory made by a projection that went through the front passenger-side headrest.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 7 of 19 would be a factually included lesser offense of this charge. I’ve requested that on the basis of Jones v. State.[ 6]
Transcript Volume V at 17. The court indicated that, were it to give a lesser-
included instruction, “it would be Criminal Recklessness as a Level 5 Felony
because the theory . . . would be that the defendant fired the firearm into a
vehicle which, under the statute, is a place,” id. at 18, and declined to provide
the instruction, relying on Means v. State, 807 N.E.2d 776 (Ind. Ct. App. 2004),
trans. denied, and Ellis v. State, 736 N.E.2d 731 (Ind. 2000).
[12] The jury found Ortiz guilty as charged. At sentencing, Ortiz’s counsel argued
Ortiz never denied he was the individual who fired the shots and he “simply
believed that he had legal justification to do so” via self-defense, his criminal
history appeared to have ended thirteen years ago when he “started focusing on
. . . having a family,” and that his biggest source of distress is the notion of his
family struggling without him being the bread winner. Transcript Volume V at
76. Ortiz stated he accepted responsibility for what he did, he wanted the
“people in the truck to know” that he “would never kill them, hurt them,” he
did not know them, and he was sorry “to everybody in Indiana.” Id. at 84.
[13] The court found as mitigating the circumstances described in the argument
from Ortiz’s counsel and the statements from Ortiz. 7 It found as aggravating:
6 In his brief, Ortiz cites Jones v. State, 868 N.E.2d 1205 (Ind. Ct. App. 2007), trans. denied. 7 The court mentioned it found some of Ortiz’s statements more mitigating than others.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 8 of 19 Ortiz’s prior criminal history which, by its review of the presentence
investigation report (“PSI”), included “two prior misdemeanor convictions and
five prior felony convictions, one probation violation, and three parole
violations”; the fact he was president of the Elkhart chapter of Sinland
motorcycle club, “which . . . acted much more like a gang than a charitable
organization set up to assist those less fortunate”; his drug use, which included
separate offenses related to usage of marijuana as a teenager and reported usage
of marijuana and methamphetamine in the past and last in 2006; that he could
have avoided the situation had he been home with his family; that, as president,
he could have intervened and prevented the entire confrontation and “the gang
behavior . . . in surrounding the truck”; his possession of a firearm for which he
did not have a license; and that he fired seven shots, including three shots “fired
back towards the cab of the truck” after he passed it. Id. at 86-88. The court
also noted: as a supplemental factor, the IRAS score placed Ortiz in the
moderate risk to reoffend category; other sanctions – including court costs,
fines, suspended jail sentences, probation, short jail sentences, short prison
sentences and parole – proved to be unsuccessful; he shot at the truck and
“continued to shoot at it while [John] was trying to escape from the threat
posed by the motorcycle gang”; and he minimized the shooting and, in doing
so, failed to accept responsibility, “just like [he] failed to stay and accept
responsibility at the scene.” Id. at 88. The court found the aggravators, taken
individually or as a whole, outweighed any mitigating factors, and it sentenced
him to thirty-seven years with two years suspended for each count of attempted
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 9 of 19 murder, to be served consecutively, for an aggregate executed sentence of 105
years.
Discussion
I.
[14] The first issue is whether the evidence is sufficient to sustain Ortiz’s
convictions. When reviewing claims of insufficiency of the evidence, we do not
reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656
N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and
the reasonable inferences therefrom that support the verdict. Id. We will affirm
the conviction if there exists evidence of probative value from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. Id.
[15] The offense of attempted murder is governed by Ind. Code § 35-42-1-1 and Ind.
Code § 35-41-5-1. To convict a defendant of attempted murder, the State must
prove beyond a reasonable doubt that the defendant, acting with the specific
intent to kill, engaged in conduct which constitutes a substantial step toward the
commission of murder. Mitchem v. State, 685 N.E.2d 671, 676 (Ind. 1997). A
“substantial step” toward the commission of a crime, for purposes of the crime
of attempt, is any overt act beyond mere preparation and in furtherance of
intent to commit an offense. Hughes v. State, 600 N.E.2d 130, 131 (Ind. Ct.
App. 1992). Whether a defendant has taken a substantial step toward the
commission of the crime is a question of fact to be decided by the trier of fact
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 10 of 19 based on the particular circumstances of the case. Id. “Intent may be inferred
from the use of a deadly weapon in a manner likely to cause death or great
bodily harm.” Noble v. State, 725 N.E.2d 842, 845 (Ind. 2000). See also Corbin v.
State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006) (“[D]ischarging a weapon in
the direction of a victim is substantial evidence from which the jury could infer
intent to kill.”) (quoting Leon v. State, 525 N.E.2d 331, 332 (Ind. 1988)). A
conviction may be based on circumstantial evidence alone. Fry v. State, 885
N.E.2d 742, 750 (Ind. Ct. App. 2008), trans. denied.
[16] In his brief, Ortiz concedes he “opened fire on the vehicle,” but he maintains
that he fired his weapon based on a belief that John was either going to run him
or another motorcyclist over with his truck. Appellant’s Brief at 9. He argues
he lacked the requisite mens rea for a conviction in all three counts, contends no
testimony demonstrated he knew when he fired his weapon that more than one
person occupied the truck, and asserts that his belief he was acting in self-
defense his testimony that he had never previously seen John, Knisley, or
Marchbanks, negated a specific intent to kill.
[17] The State argues Ortiz waived any separate legal issue of whether it had failed
to rebut a self-defense claim because he does not advance cogent argument
supported by citations to appropriate legal authority. It contends that, waiver
notwithstanding, he cannot demonstrate his actions were justified since he:
blocked the proper flow of traffic; participated in the confrontation and
intimidation of John and removed his gun as he passed the truck; and
continued firing after the danger passed and when, according to his testimony,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 11 of 19 he was “side by side” with the truck. Appellee’s Brief at 25 (quoting Transcript
Volume IV at 231). In maintaining he acted with the requisite specific intent,
the State points to the fact that he fired his gun as many as ten times, and
contends that the forensic examination of the bullets’ trajectories supports a
finding that he adjusted the angle of his gun toward the truck’s cabin as it
accelerated to safety; that is, besides a “few shots on the front,” the rest of the
bullets were fired into the truck’s side around passenger-level. Id. at 22. It
further contends the jury could reasonably have concluded Ortiz saw the truck’s
three occupants when he initially passed within feet of it or shot at it while he
was side-by-side with it and, pointing to State’s Exhibit 3, a photograph of
Knisley’s truck, claims that the “landscape on the other side of the truck” can
be seen clearly even when viewed through as many as two of the truck’s tinted
windows. Id.
[18] The evidence shows that Ortiz, driving in the opposite lane of traffic, rode
toward the truck that John, Knisley, and Marchbanks occupied and which he
had previously driven past at a distance not greater than twelve feet, and as the
truck attempted to leave the area Ortiz fired at it a total of nine or ten times,
continuing to fire even as he passed it. One of the bullets entered John’s open
window and struck Knisley’s headrest and another of the bullets struck
Marchbanks’s ponytail. To the extent Ortiz suggests there was no evidence he
knew that three individuals occupied vehicle, we note that Ortiz passed John’s
vehicle in the passing lane at no more than twelve feet, John’s driver side
window was open, John saw Ortiz pull the gun up, Marchbanks looked at Ortiz
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 12 of 19 directly in the face before she ducked, Ortiz’s view was not obstructed by a
helmet, he was side-by-side with John’s vehicle when he fired some of the shots,
and, while the windows were tinted, the photographs admitted at trial showed
the windows were not so tinted as to conceal a person. Ortiz’s arguments are
invitations to reweigh the evidence, which we cannot do. Id.
[19] We conclude that the State presented evidence of probative value from which a
reasonable jury could have determined beyond a reasonable doubt that Ortiz
was guilty of three counts of attempted murder. See Cook v. State, 675 N.E.2d
687, 692 (Ind. 1996) (holding that the evidence was sufficient to sustain the
defendant’s conviction for murder despite the defendant’s argument that he did
not intentionally shoot at the victim); Maxwell, 731 N.E.2d 459, 462-463 (Ind.
Ct. App. 2000) (holding that the evidence was sufficient to sustain the
defendant’s conviction for attempted murder where he pointed and shot his .44
caliber handgun at two victims at close range), trans. denied.
II.
[20] The next issue is whether the trial court erred by declining to provide Ortiz’s
proposed instruction about criminal recklessness as a lesser-included offense. We
apply a three-step analysis in determining whether a defendant was entitled to an
instruction on a lesser-included offense. See Wright v. State, 658 N.E.2d 563, 566-
567 (Ind. 1995). We must determine: (1) whether the lesser-included offense is
inherently included in the crime charged; if not, (2) whether the lesser-included
offense is factually included in the crime charged; and, if either, (3) whether there
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 13 of 19 is a serious evidentiary dispute whereby the jury could conclude the lesser offense
was committed but not the greater offense. Id. If the “jury could conclude that
the lesser offense was committed but not the greater, then it is reversible error for
a trial court not to give an instruction, when requested, on the inherently or
factually included lesser offense.” Id. at 567. When the trial court makes a
finding that a serious evidentiary dispute does not exist, we will review that
finding for an abuse of discretion. Brown v. State, 703 N.E.2d 1010, 1019 (Ind.
1998). However, if a trial court rejects a tendered lesser-included offense
instruction on the basis of its view of the law, as opposed to a finding that there is
no serious evidentiary dispute, appellate review of the ruling is de novo. See White
v. State, 849 N.E.2d 735, 739 (Ind. Ct. App. 2006) (citing Brown, 703 N.E.2d at
1019), reh’g denied, trans. denied.
[21] Arguing criminal recklessness is an inherently lesser-included offense of
murder, Ortiz cites Miller v. State, 720 N.E.2d 696 (Ind. 1999), for the
proposition that culpability is the only element distinguishing the crimes of
criminal recklessness and murder. He also argues criminal recklessness, in this
instance when he “asserted the [sic] he acted in self-defense, and the trial court
provided the jury with a self-defense instruction,” was a factually included
offense of the charge of attempted murder, and contends that the court should
have proceeded to the third step of the Wright analysis. Appellant’s Brief at 19.
The State argues criminal recklessness was not an inherently or factually-
included offense and maintains the trial court did not need to have proceeded to
the third step of the Wright analysis.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 14 of 19 [22] It is well-established in Indiana that criminal recklessness is not an inherently
included offense of attempted murder. Ellis, 736 N.E.2d at 734. However,
whether an offense is a factually lesser-included offense of another offense
requires a case-by-case determination. White, 849 N.E.2d at 739. “As for
whether criminal recklessness is a factually included offense of attempted
murder, the answer may be discerned from the charging information.” Ellis,
736 N.E.2d at 734 (citation omitted). Criminal recklessness is not factually
included when the charging information “does not include any element of
reckless behavior.” Id.
[23] In Ellis, the defendant was charged with attempted murder as follows: “Ellis did
attempt to commit the crime of Murder by knowingly or intentionally firing a
deadly weapon at and against the person of [the victim], which conduct
constituted a substantial step toward the commission of the crime of Murder
[.]” Id. at 735. The Indiana Supreme Court held that because the attempted
murder charge “did not include any element of reckless behavior, [criminal
recklessness] was not factually included in the crime charged.” Id. (citing
Wilson v. State, 697 N.E.2d 466, 477 (Ind. 1998), reh’g denied).
[24] In the instant case, the information charging Ortiz with attempted murder
provides, in pertinent part: “MICHAEL R. ORTIZ, with the specific intent to
commit the crime of murder, that is to intentionally kill another human being,
to wit: John Hinegardner, Jr., did engage in conduct that constituted a
substantial step towards the commission of said murder . . . .” Appellant’s
Appendix Volume II at 16. Accord id. (alleging in the other two counts the same
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 15 of 19 against Ortiz with regard to Knisley and Marchbanks). This information, like
the information in Ellis, includes no element of reckless behavior. Therefore,
we find that criminal recklessness was not factually included in the attempted
murder charge. 8 See White, 849 N.E.2d at 740; Ellis, 736 N.E.2d at 735. The
trial court did not err in refusing to instruct the jury on criminal recklessness
because it was neither inherently nor factually included in the crime charged.
III.
[25] The next issue is whether Ortiz’s sentence is inappropriate in light of the nature
of the offenses and his character. Under Ind. Appellate Rule 7(B), the burden is
on the defendant to persuade the appellate court that his or her sentence is
inappropriate. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Relief
is available if, after due consideration of the trial court’s sentencing decision,
this court finds that in our independent judgment, the sentence is inappropriate
in light of the nature of the offense and the character of the offender. Hines v.
State, 30 N.E.3d 1216, 1225 (Ind. 2015). “[S]entencing is principally a
discretionary function in which the trial court’s judgment should receive
considerable deference.” Id. (quoting Cardwell v. State, 895 N.E.2d 1219, 1222
8 To the extent Ortiz cites to Jones v. State, 868 N.E.2d 1205 (Ind. Ct. App. 2007), trans. denied, we observe that, in Jones's case, “specific intent to kill” appeared nowhere in the final instructions provided to the jury which stated “that if the State proved that while acting with the ‘specific attempt’ to kill Douglass, Jones did attempt to kill him, which was a substantial step toward the commission of the ‘intended crime’ of killing Douglass, then the jury could convict Jones of attempted murder.” Jones, 868 N.E.2d at 1210. Unlike in Jones, the trial court here instructed the jury that the State must prove Ortiz acted with the specific intent to kill each of the vehicle’s occupants.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 16 of 19 (Ind. 2008)). Deference to the court’s decision “should prevail unless overcome
by compelling evidence portraying in a positive light the nature of the offense
(such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
“[W]hether we regard a sentence as appropriate at the end of the day turns on
our sense of 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.” Hines, 30 N.E.3d at 1225 (quoting Cardwell, 895 N.E.2d at 1224).
[26] Ortiz argues, as he did in Part I, that he believed he was acting in self-defense.
He argues “there was no one hit with a bullet” that he fired, he did not know
any of the individuals in the vehicle, and there was nothing notably
distinguishable about the nature of the offense to justify the aggravated
sentence. Appellant’s Brief at 22. He also argues he was gainfully employed,
was married for ten years, and had four children at the time of the incident; he
and Lawson both described the motorcycle club of which he was president as a
charitable organization; and he apologized to the victims.
[27] Our review of the nature of the offenses reveals that the shooting incident began
when Ortiz, wearing a Sinland vest and as the group’s president, led
approximately six motorcyclists, including Lawson and Linsey, in “chasing . . .
down” a truck that Linsey’s ex-husband, John, drove with his nephew and
friend as passengers. Transcript Volume III at 34. As Ortiz passed the truck in
the adjacent passing lane, he removed and placed a gun in between his legs, and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 17 of 19 John noted the gun and stopped the truck. The motorcyclists gathered at the
following intersection and blocked traffic. Ortiz raised his hands and a gun in
the air when Linsey began “hollering,” and a motorcyclist positioned a bike to
inhibit the truck’s escape. Id. at 42. As John attempted to drive away, Ortiz
rode toward and fired nine or ten times at the truck, and bullets struck the front
passenger headrest and Marchbanks’s ponytail. Afterwards, Ortiz and the other
motorcyclists hid their motorcycles and removed and left their vests. Knisley
testified his mental state after the incident was “pretty erratic” and that he
suffered sleepless nights. Id. at 116.
[28] Turning to Ortiz’s character, we note his involvement as president of, and in
recruiting new members to, the Elkhart, Indiana chapter of Sinland, a
motorcycle group which the trial court found acted more like a gang than a
charitable organization. We observe that Ortiz admits to bringing Sinland to
Indiana from California. The PSI indicates Ortiz’s juvenile history includes a
1996 delinquent act in California for “Warrant – Vehicle Theft,” for which he
reported he had been detained but not formally charged. Appellant’s Appendix
Volume II at 99. His adult criminal history began in California and includes
charges in 2000 for “Possess/Mfg/Sell Dangerous Weapon/Etc., Felony” and
“Obstruct Public Officer/Etc, Misdemeanor,” convictions in 2001 for a
“Possess/Mfg/Sell Dangerous Weapon/Etc., Misdemeanor” and driving
without a license as a misdemeanor, a conviction in 2001 for vehicle theft as a
felony, a probation revocation and sixteen month prison sentence in 2001
related to charges for “Make/Pass Fictitious Check, Felony” and “Receive/Etc.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 18 of 19 Known Stolen Property, Felony,” convictions in 2006 for vehicle theft as a
felony, possession of a firearm as a felon, a felony, and possession of controlled
substance for sale as a felony, and two separate charges in 2008 and a charge
each in 2009 and 2011 for violation of parole as a felony. Id. at 99-100. The
PSI indicates he was “[r]eceived at Institution for men in Chino, California” in
February 2008 and February 2009. Id. at 100, 101. In the Substance Abuse
section, it states he reported trying marijuana as a teenager and that, according
to the “Bond Report, [he] reported using marijuana and methamphetamine in
the past and that he last used them in 2006.” Id. at 103.
[29] After due consideration, we cannot say that Ortiz has sustained his burden of
establishing that his aggregate sentence is inappropriate in light of the nature of
the offenses and his character.
Conclusion
[30] For the foregoing reasons, we affirm Ortiz’s convictions and sentence for three
counts of attempted murder as level 1 felonies.
[31] Affirmed.
Najam, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1670 | March 31, 2020 Page 19 of 19