APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Grant W. Hawkins, Judge. Cause No. 49G05-1209-MR-62632.
ATTORNEY FOR APPELLANT: ELLEN M. O'CONNOR, Marion County Public Defender Agency, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, MONIKA PREKOPA TALBOT, Deputy Attorney General, Indianapolis, Indiana.
NAJAM, Judge. VAIDIK, C.J., and BROWN, J., concur.
STATEMENT OF THE CASE
Marquise Lee petitions for rehearing after we affirmed his conviction for attempted aggravated battery, a Class B felony, in a not-for-publication memorandum decision. See Marquise Lee v. State, No.
49A02-1310-CR-869, 13 N.E.3d 554, 2014 WL 2187702 (Ind.Ct.App. May 27, 2014) (" Marquise Lee I" ). Marquise and two of his confederates, Latoya Lee and Billy Young, were each charged with the murder of Ramon Gude, they were tried jointly to the bench, and, on their joint motion, the trial court entered an involuntary dismissal of the State's murder charges. However, in doing so the court " kept the case open for consideration of lesser included battery charges." Id. at *1. The court then found each of the three defendants guilty of attempted aggravated battery, and the defendants separately appealed. Following this panel's decision, another panel of this court unanimously reversed Young's conviction. Young v. State, 11 N.E.3d 964, 2014 WL 2616189 (Ind.Ct.App. 2014), reh'g denied (July 22, 2014). A third panel of this court unanimously affirmed Latoya's conviction and sentence. Latoya Lee v. State, No.
49A02-1310-CR-867, 13 N.E.3d 951, 2014 WL 2587313 (Ind.Ct.App. June 10, 2014), reh'g granted and decision aff'd (August 27, 2014) (" We grant rehearing to acknowledge our awareness of the decision in Young but decline to reverse our earlier decision . . . as [Latoya] did not raise any issue concerning the charging information on appeal." ). Marquise now petitions for rehearing and asks that this panel follow the Young panel's reasoning. We decline to do so and affirm our prior decision.
FACTS AND PROCEDURAL HISTORY
In Marquise Lee I, we set out the facts underlying Marquise's conviction for attempted aggravated battery, a Class B felony, as follows:
Tiara Robertson used to date Brandon Lee and was good friends with Brandon's sister, Latoya Lee. Latoya is Marquise's mother.
Sometime before September of 2012, Tiara left Brandon and began dating Ramon Gude. This upset Latoya and, on September 5, 2012, Latoya confronted Tiara at Tiara's and Ramon's shared residence. Ramon interceded in this argument and hit Latoya in the face. Latoya was " mad" and left saying, " I'll be back." Transcript at 32.
On September 7, Latoya returned to Tiara's and Ramon's residence. Latoya was accompanied by Marquise, Billy Young (a cousin of Latoya and Brandon), and a third, unknown man. Tiara was upstairs when they arrived but rushed downstairs when she heard Ramon
yelling. Upon arriving downstairs, she observed Marquise attacking Ramon, who was trying to get inside. Tiara tried to help pull Ramon inside the house during the attack. Latoya told Tiara to " get out of the way." Id. at 39.
Once inside the residence, Ramon " balled up" his body while the three men came inside to continue their attack. Id. Tiara then observed Billy hand a firearm and clip to Marquise. But Marquise was not able to load the clip into the firearm. While Tiara watched Marquise fumble with his clip and firearm, Billy was in her line of sight, and Latoya was outside. Tiara then heard several gunshots from the direction of the unknown man and observed that Marquise and Billy " looked . . . surprised." Id. at 76. Ramon collapsed, the assailants fled, and Tiara called 9-1-1. A neighbor heard the gunshots, witnessed the assailants flee the scene, and recognized the female assailant from the September 5 argument. Ramon died later that day from his gunshot wounds.
On September 24, the State charged Latoya, Marquise, and Billy with murder, a felony, and conspiracy to commit murder, a Class A felony. The defendants were tried jointly to the bench on September 9 and 10, 2013. Following the close of the State's evidence, the trial court granted the defendants' motion for involuntary dismissal of the murder and conspiracy to commit murder charges but kept the case open for consideration of lesser included battery charges. Following the trial, the court found Marquise guilty of attempted aggravated battery, a Class B felony, and sentenced him to fifteen years
13 N.E.3d 554, 2014 WL 2187702 at *1 (footnotes omitted). For the same reasons, the trial court entered the same convictions and sentences for Latoya and Young. The man who ...