Raymond Benjamin Gray v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 19, 2012
• Docket: 82A04-1106-CR-327
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

E. PAIGE FREITAG GREGORY F. ZOELLER Jones, McGlasson & Benckart Attorney General of Indiana Bloomington, Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana

FILED Jan 19 2012, 9:36 am

IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court

RAYMOND BENJAMIN GRAY, ) ) Appellant-Defendant, ) ) vs. ) No. 82A04-1106-CR-327 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable Robert J. Tornatta, Judge Cause No. 82D02-1008-MR-801

January 19, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge Case Summary

Raymond Benjamin Gray carried an unlicensed handgun when he accompanied his

wife and children to a sporting event at an Evansville park. Shortly after arriving, he

encountered a man who had been in a dispute with his brother. When the man’s associate

punched him from behind, Gray fired his weapon several times. One of the bullets struck the

assailant in the head, and he died. Gray fled, but when police apprehended him, he

cooperated. A jury acquitted him of voluntary manslaughter, but convicted him of class C

felony criminal recklessness and class A misdemeanor carrying a handgun without a license.

Gray now appeals, challenging his eight-year aggregate executed sentence. Finding that the

trial court acted within its discretion and that Gray has failed to establish the

inappropriateness of his sentence, we affirm.

Facts and Procedural History

At 9:00 p.m. on August 5, 2010, Gray took his wife, three of their five children, and

two teenaged cousins to an Evansville park for a summer basketball tournament. The

tournament was a community event, and approximately 250 people were at the park that

night. Several years earlier, Gray had been attacked with a knife at a similar event at a Gary,

Indiana park. As a result, he carried a handgun with him to the Evansville park that night.

He did not have a license to carry the handgun.

Shortly after arriving, Gray got into an argument with Mario Watkins and Dewayne

Thomas concerning a disagreement between his brother and Watkins. Tempers momentarily

calmed when Antoine Adams intervened. Gray began to walk away, and Watkins and

2 Thomas followed. According to the park’s surveillance cameras, Thomas hit Gray in the

back of the head, and Gray pulled out the handgun and fired three to eight shots, one of

which hit Thomas in the head. As the shots rang out across the playground area, onlookers

began to scatter. Gray fled the scene and discarded his handgun and clothes. Thomas was

taken by ambulance to a nearby hospital, where he died from his gunshot wound.

Later, Gray’s wife returned home and found Gray there. He had taken a shower,

changed his clothes, and cut his hair. He considered fleeing, but told his wife that he was

going to turn himself in. Police later found him hiding in the backseat of his minister’s

vehicle and arrested him. Gray admitted shooting Thomas, but claimed self-defense/defense

of his family. He wrote an apology letter and told police the location of the weapon as well

as his clothes.

On August 10, 2010, the State charged Gray with murder, class C felony criminal

recklessness, and class A misdemeanor carrying a handgun without a license. The murder

charge was later amended to class A felony voluntary manslaughter. On April 27, 2011, a

jury found him guilty on the criminal recklessness and handgun counts and acquitted him of

voluntary manslaughter.

At a May 25, 2011, sentencing hearing, Gray cited his minimal criminal history and

his family support obligations in requesting a suspended sentence, work release, or home

detention. The State argued in favor of an executed sentence, citing a prior firearm

conviction in Illinois. The trial court identified as aggravators Gray’s prior firearm offense,

the number of shots fired, the victim’s death, and the crowded, family-oriented location.

3 The court sentenced Gray to an eight-year executed term for criminal recklessness and a

concurrent one-year term for the handgun offense. This appeal ensued. Additional facts will

be provided as necessary.

Discussion and Decision

Gray claims that the trial court abused its discretion in sentencing him. He also asks

us to revise his sentence pursuant to Indiana Appellate Rule 7(B). We address each

contention in turn. Sentencing decisions are within the trial court’s discretion. Anglemyer v.

State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. “So long as the

sentence is within the statutory range, it is subject to review only for an abuse of discretion.”

Id. 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. (citations and quotation marks omitted).

I. Abuse of Discretion

Gray claims that the trial court abused its discretion in applying certain aggravating

and mitigating circumstances at sentencing. A trial court may impose any sentence that is

authorized by Indiana’s Constitution and statutes regardless of the presence or absence of

aggravating or mitigating circumstances. Ind. Code § 35-38-1-7.1(d). If the trial court finds

the existence of aggravating or mitigating circumstances, then it is required to give a

statement of its reasons for selecting the sentence that it imposes. Anglemyer, 868 N.E.2d at

490. One of the ways that a trial court may abuse its discretion is by failing to consider

aggravating or mitigating factors that are clearly supported by the record and advanced for

4 consideration during sentencing. Id. at 490-91.

The trial court sentenced Gray to an eight-year term for his class C felony criminal

recklessness conviction and a concurrent one-year term for his class A misdemeanor handgun

conviction. The statutory sentencing range for a class C felony is two to eight years, with a

four-year advisory term. Ind. Code § 35-50-2-6. A class A misdemeanor conviction subjects

the offender to a sentence of not more than one year. Ind. Code § 35-50-3-2.

The trial court found the following aggravating circumstances: victim impact, Gray’s

criminal history, and the circumstances surrounding the shooting. Gray does not dispute that

victim impact and criminal history are proper considerations in sentencing pursuant to

Indiana Code Section 35-38-1-7.1(a). Instead, he asserts that the trial court improperly

counted as aggravating circumstances its opinions and biases concerning his decision to take

a handgun to a crowded park in Evansville, as opposed to Gary, Indiana. However, with

respect to the family setting, we note that it is proper to consider whether a violent offense

was committed in the presence of children. Ind. Code § 35-38-1-7.1(a)(3). Moreover, with

respect to the issue of safety in Indiana’s various cities, the trial judge addressed the two

cities, but seemed to grapple more with the reasonableness of Gray’s defense of family

argument, indicating that he could “not wrap [his] hands around the whole concept that

[Gray] had the gun to protect [his] family.” Tr. at 480. The trial court went on to say that

“when you want to take the kids out for the night, you don’t take them to a place where you

feel like you have to take a gun to be safe.” Id. at 481. We conclude that these comments

merely emphasized Gray’s poor judgment and did not amount to an abuse of discretion.

5 Gray also argues that the trial court ignored his financial hardship argument. In this

vein, we note that “many persons convicted of serious crimes have one or more children and,

absent special circumstances, trial courts are not required to find that imprisonment will

result in an undue hardship.” Reese v. State, 939 N.E.2d 695, 703 (Ind. Ct. App. 2011),

trans. denied. Gray made no showing of special circumstances of undue hardship. Thus, the

trial court did not abuse its discretion on this point.

II. Appropriateness of Sentence

Gray also challenges the appropriateness of his sentence pursuant to Indiana Appellate

Rule 7(B), which provides that we “may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, [this] Court finds that the sentence is inappropriate

in light of the nature of the offense and the character of the offender.” When a defendant

requests appellate review and revision of his sentence, we have the power to affirm, reduce,

or increase the sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). Our review

should focus on the aggregate sentence rather than its consecutive or concurrent nature,

number of counts, or length of the sentence on any individual count. Cardwell v. State, 895

N.E.2d 1219, 1225 (Ind. 2008). In conducting our review, we 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.” Fonner v. State, 876 N.E.2d 340, 344

(Ind. Ct. App. 2007). A defendant bears the burden of persuading this Court that his sentence

meets the inappropriateness standard. Anglemyer, 868 N.E.2d at 490; Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

6 In considering the nature of a defendant’s offense, “the advisory sentence is the

starting point the Legislature has selected as an appropriate sentence.” Anglemyer, 868

N.E.2d at 494. Gray was sentenced to eight years for class C felony criminal recklessness,

which carries a two-to-eight-year range and a four-year advisory term. Ind. Code § 35-50-2-

6. He also received a concurrent one-year term for his handgun offense, which is the

maximum allowable for a class A misdemeanor conviction. Ind. Code § 35-50-3-2. His

offense resulted in the death of one man and, given the multiple shots fired in the crowded

playground and recreational area, the casualties could have been higher. As reckless acts go,

firing a gun multiple times in a large crowd that includes families with children carries strong

potential for serious injury. Thus, we cannot downplay the actual or potential consequences

of Gray’s conduct.

In examining Gray’s character, we see a man who packed an unlicensed handgun

while accompanying his family on an outing to a crowded park. When he was attacked from

behind with a fist, he responded with a gun. Although he did not initiate the incident, his

overreaction in firing multiple shots escalated the fracas to a deadly level. Such behavior

indicates that he is a man of extremely poor judgment who has failed to learn from prior

experience. To the extent that he cites his apology and his cooperation with police following

his arrest as evidence of good character, we note that his initial response was to flee the scene

and avoid detection by altering his appearance and discarding his clothing and weapon.

Notwithstanding his minimal criminal history in Indiana, with one conviction for class A

misdemeanor false informing, he admitted to a handgun-related conviction in Illinois.

7 Finally, we again note his argument in favor of work release or probation based on his

obligation to support his five children, but we also note that prisons are unfortunately

populated with many fathers and find that Gray made no particular showing of how his status

as a father reflects well on his character, especially in light of the circumstances surrounding

these particular offenses. As such, we conclude that Gray has failed to meet his burden of

establishing that his eight-year maximum executed sentence is inappropriate in light of the

nature of the offense and his character. Accordingly, we affirm.

Affirmed.

MAY, J., and BROWN, J., concur.