Appeal from the Tippecanoe Superior Court. The Honorable Randy J. Williams, Judge. Cause No. 79D01-1301-FB-1.
ATTORNEY FOR APPELLANT, John S. Antalis Lafayette, Indiana.
ATTORNEYS FOR APPELLEE, Gregory F. Zoeller Attorney General of Indiana: Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana.
Bradford, Judge. Najam, J., and Mathias, J., concur.
[¶ 1] On December 28, 2012, a fight broke out between several people outside of a Lafayette bar. During the altercation, Appellant-Defendant Brent Dimmitt attacked and injured two men, one of whom was seriously injured. Dimmitt admitted to being the president of a criminal gang called Rebel Cause. Dimmitt instigated and took part in the fight with several other members of Rebel Cause. Dimmitt was convicted of Class C felony battery, Class A misdemeanor battery, Class D felony criminal gang activity, and being a habitual offender. Dimmitt was sentenced to consecutive terms of eight years for Class C felony battery, one year for Class A misdemeanor battery, two years for criminal gang activity, and eight years for being a habitual offender, for a total of eighteen years served and one year suspended to probation.
[¶ 2] Dimmitt claims that (1) the trial court fundamentally erred by failing to properly instruct the jury on the elements of the charge of criminal gang activity, (2) the trial court's sentence exceeded the maximum sentence allowed by statute, and (3) the evidence was insufficient to support the conviction for criminal gang activity. We find that Dimmitt's sentence was erroneous in two respects: (1) the trial court erred by imposing the habitual offender sentence as a separate count rather than as an enhancement of the underlying felony and (2) the sentence exceeded the statutory limitation for consecutive terms. We reverse and remand with instructions
that Dimmitt's sentence be reduced by one year. In all other respects, we affirm.
Facts and Procedural History
[¶ 3] In the early morning hours of December 28, 2012, Troy Kelly, Raymond Depew, and David Widner arrived at a Lafayette bar with several friends. After being seated, a man in a blue hooded sweatshirt approached the group and confronted Depew about eye contact that had been made upon entering the bar. The man left the table but soon returned accompanied by two other men, Dimmitt and Robert Niles. During the verbal confrontation that ensued between the two groups, Dimmitt lifted his shirt, exposing several gang-related tattoos, and stated that he was the president of a gang called Rebel Cause. Dimmitt's tattoos include a swastika on his chest and an emblem on his bicep which bears the words " rebel cause" and " pres." Ex. 32, 36. Tr. pp. 399-400. There were other individuals in the bar with Rebel Cause tattoos. Niles was also a member of Rebel Cause. After members of Depew's group made assurances that they did not want any trouble, Dimmitt shook hands with two people in the group and left.
[¶ 4] At approximately 2:30 a.m., Depew's group attempted to leave the bar. Dimmitt's group followed them outside, at which point the man in the blue hooded shirt came up behind Depew and punched him in the back of the head. A fight ensued between several people from each group. Dimmitt and the man in the blue shirt grabbed Kelly while another man punched Kelly in the face. Dimmitt then held Kelly against a car and punched him in the face. Kelly suffered cuts and abrasions throughout his body and a torn rotator cuff. Minutes later, Dimmitt punched Widner, knocking him unconscious. Dimmitt then kicked Widner in the head as he laid on the ground unconscious.
[¶ 5] As a result of the attack, Widner suffered a skull fracture and a subdural hematoma. Widner has suffered permanent brain damage as a result of the injury. He has since suffered from depression and anxiety and has had problems with walking, spatial awareness, fine motor skills on his left side, and social and communication skills.
[¶ 6] Appellee-Plaintiff the State of Indiana (the " State" ) charged Dimmitt with Class B felony aggravated battery, Class C felony battery, Class A misdemeanor battery, Class B misdemeanor battery, Class D felony criminal gang activity, and being a habitual offender. During the trial, the State introduced evidence from several gang specialists that Rebel Cause was a white supremacist prison gang that had expanded outside prisons. The gang has approximately 163 members and has been known to engage in criminal activity including murder, kidnapping, armed robbery, arson, dealing cocaine, intimidation, battery, and assault. To be admitted to the gang, members must commit some type of physical assault against another person. When members leave the gang, they are physically assaulted by other members as punishment.
[¶ 7] With regard to the criminal gang activity charge, the trial court instructed the jury as follows:
The crime of criminal Gang Activity is defined as follows: A person who knowingly or intentionally actively participates in a criminal gang commits Criminal Gang Activity, a class D felony. Before you may convict the Defendant, the State must have proved each of the following elements beyond a reasonable doubt:
1. The Defendant
2. Knowingly or intentionally
3. Actively ...