Court of Appeals of Indiana | Opinion 79A02-1406-CR-443 | January 28, 2015 Page 1 of 14

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

I N T H E

COURT OF APPEALS OF INDIANA

Brent Anthony Dimmitt,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 28, 2015

Court of Appeals Cause No.

79A02-1406-CR-443

Appeal from the Tippecanoe Superior 

Court

The Honorable Randy J. Williams, 

Judge

Cause No. 79D01-1301-FB-1

Bradford, Judge.
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Case Summary

[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. 
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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. 
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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.
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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 participated in

4. A criminal gang

If the State failed to prove each of these elements beyond a reasonable 

doubt, you must find the Defendant not guilty of Criminal Gang 

Activity, a class D felony, as charged in Count V. 

If the State did prove each of these elements beyond a reasonable 

doubt, you may find the Defendant guilty of Criminal Gang Activity, a 

class D felony, as charged in Count V.

* * * *

The term “criminal gang” means a group with at least three (3) 

members that specifically 

promotes, sponsors, assists in, or participates in 

or

requires as a condition of membership or continued 

membership

the commission of a felony, or an act that would be a felony if 

committed by an adult, or the offense of battery. 

Appellant’s App. pp. 401, 408. 

[8] The jury found Dimmitt guilty of Class C felony battery causing serious bodily 

injury, Class A misdemeanor battery, and Class D felony criminal gang 

activity. Dimmitt pled guilty to the habitual offender charge. The trial court 

sentenced Dimmitt to consecutive sentences of eight years for felony battery, 

one year for 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. 

Discussion and Decision
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[9] Dimmitt makes the following arguments on appeal: (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. 

I. Fundamental Error in the Jury Instructions

[10] Instructing a jury is left to the sound discretion of the trial court and this court 

will review such decisions only for an abuse of discretion. Washington v. State, 

997 N.E.2d 342, 345 (Ind. 2013). However, a party wishing to preserve such an 

error for appeal must identify the specific grounds for objection at trial. Kane v. 

State, 976 N.E.2d 1228, 1231 (Ind. 2012). As an initial matter, Dimmitt 

concedes that he failed to object to the instruction at trial. However, Dimmitt 

attempts to avoid the effect of his waiver by contending that the trial court 

committed a fundamental error in failing to properly instruct the jury.

[11] At the time Dimmitt committed his offenses, Indiana Code section 35-45-9-3 

(the “Gang Statute”) stated, “[a] person who knowingly or intentionally 

actively participates in a criminal gang commits criminal gang activity, a class 

D felony.” In Helton v. State, 624 N.E.2d 499, 508 (Ind. Ct. App. 1993), this 

court construed the statute to require that “the active member with guilty 

knowledge also have a specific intent or purpose to further the group’s criminal 

conduct before he may be prosecuted.” “The specific-intent element requires 

proof of a nexus between furthering the goals of the criminal gang and the 
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alleged crime.” G.H. v. State, 987 N.E.2d 1164, 1168 (Ind. Ct. App. 2013) trans. 

denied. Dimmitt claims that the trial court fundamentally erred by omitting the 

element of specific intent from its instruction. 

Fundamental error is an extremely narrow exception to the waiver rule 

where the defendant faces the heavy burden of showing that the 

alleged errors are so prejudicial to the defendant’s rights as to “make a 

fair trial impossible.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002), 

quoted in [Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012)] and [Cooper 

v. State, 854 N.E.2d 831, 835 (Ind. 2006)]. In other words, to establish 

fundamental error, the defendant must show that, under the 

circumstances, the trial judge erred in not sua sponte raising the issue 

because alleged errors (a) “constitute clearly blatant violations of basic 

and elementary principles of due process” and (b) “present an 

undeniable and substantial potential for harm.” Id. The element of

such harm is not established by the fact of ultimate conviction but 

rather “depends upon whether [the defendant’s] right to a fair trial was 

detrimentally affected by the denial of procedural opportunities for the 

ascertainment of truth to which he otherwise would have been 

entitled.” Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994) (quoting 

Hart v. State, 578 N.E.2d 336, 338 (Ind. 1991)).

Ryan v. State, 9 N.E.3d 663 (Ind. 2014), reh’g denied. Put differently, a 

fundamental error “must constitute a blatant violation of basic principles, the 

harm, or potential for harm must be substantial, and the resulting error must 

deny the defendant fundamental due process.” Spears v. State, 811 N.E.2d 485, 

489 (Ind. Ct. App. 2004)

[12] The trial court’s failure to sua sponte instruct the jury on the specific-intent 

element was not a fundamental error because there was no substantial harm to 

Dimmitt. The State provided substantial evidence which indicated a nexus 

between Dimmitt’s offenses and furthering the goals of his criminal gang. 
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Specifically, the State showed that the members of Rebel Cause typically 

engage in violent behavior, including battery, as part of ritual initiations and 

punishments, and more generally to promote fear and maintain an image of 

viciousness. From the beginning of the altercation between Dimmitt and the 

victims’ group, Dimmitt was clear about his affiliation and leadership within 

the gang. He used this affiliation, and the tattoos designating such, as a means 

to intimidate the victims. Furthermore, Dimmitt took part in the batteries with 

several individuals who were also identified as members of Rebel Cause. 

Therefore, because the State provided evidence to support the finding of a 

nexus, there was no undeniable or substantial potential for harm as is necessary 

to find a fundamental error. 

II. Sufficiency of Evidence

[13] Dimmitt argues that there was insufficient evidence to support his conviction 

for criminal gang activity because there was not substantial evidence of a nexus 

between Dimmitt’s gang affiliation and the charged offenses. 

When reviewing the sufficiency of the evidence to support a 

conviction, appellate courts must consider only the probative evidence 

and reasonable inferences supporting the verdict. It is the fact-finder’s 

role, not that of appellate courts, to assess witness credibility and 

weigh the evidence to determine whether it is sufficient to support a 

conviction. To preserve this structure, when appellate courts are 

confronted with conflicting evidence, they must consider it most 

favorably to the trial court’s ruling. Appellate courts affirm the 

conviction unless no reasonable fact-finder could find the elements of 

the crime proven beyond a reasonable doubt. It is therefore not 

necessary that the evidence overcome every reasonable hypothesis of 
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innocence. The evidence is sufficient if an inference may reasonably 

be drawn from it to support the verdict. 

Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (internal quotations and 

citations omitted, emphasis in original). 

[14] To support his argument, Dimmitt cites to cases in which this court, and the 

Indiana Supreme Court, have reversed convictions for criminal gang activity 

where there was not a sufficient nexus between the offense and the gang 

affiliation. Trice v. State, 693 N.E.2d 649 (Ind. App. Ct. 1998); Ferrell v. State, 

746 N.E.2d 48 (Ind. 2001). In Ferrell, the Court found that “[t]he State’s case 

on [the criminal gang activity] offense consisted only of evidence that Ferrell, at 

some point, was a member of a gang that commits criminal offenses.” Id. at 51. 

Specifically, the State only presented evidence that Ferrell had gang tattoos. 

There was no other evidence which tied his commission of robbery and murder 

to his gang affiliation. 

[15] In Trice, the defendant belonged to a gang called D’Ware, which was known to 

engage in narcotics trafficking. 693 N.E.2d at 650. Although Trice admitted to 

being an active gang member, there was no evidence which showed how Trice’s 

battery of the victim was related to any gang activities. Rather, the evidence 

showed that Trice beat the victim “spontaneously” after the victim caused 

Trice’s bottle of liquor to spill and refused to pay for it. Id. at 651. 

[16] The instant case is distinguishable from Ferrell and Trice. As we have already 

outlined in detail, there is substantial evidence indicating a nexus between the 
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battery and the gang activity: Dimmitt openly announced his affiliation with 

Rebel Cause at the outset of the confrontation and used that affiliation as a 

means of intimidation; battery is commonly used by the gang for various 

reasons to further its criminal goals; and Dimmitt committed the underlying 

offenses together with other members of Rebel Cause. As such, the evidence 

was not insufficient to support the conviction for criminal gang activity. 

III. Sentence in Excess of Statutory Limits

A. Habitual Offender Enhancement

[17] The version of Indiana Code section 35-50-2-1.3 which was in effect at the time 

the instant offenses were committed provided as follows:

(a) For purposes of sections 3 through 7 of this chapter, “advisory 

sentence” means a guideline sentence that the court may voluntarily 

consider as the midpoint between the maximum sentence and the 

minimum sentence. 

(b) Except as provided in subsection (c), a court is not required to use 

an advisory sentence. 

(c) In imposing: 

(1) consecutive sentences for felony convictions that are not 

crimes of violence (as defined in [Indiana Code section] 35-50-

1-2(a)) arising out of an episode of criminal conduct, in 

accordance with [Indiana Code section] 35-50-1-2; 

(2) an additional fixed term to an habitual offender under 

section 8 of this chapter; or 

(3) an additional fixed term to a repeat sexual offender under 

section 14 of this chapter; 

a court is required to use the appropriate advisory sentence in 

imposing a consecutive sentence or an additional fixed term. However, 

the court is not required to use the advisory sentence in imposing the 

sentence for the underlying offense.
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[18] The trial court sentenced Dimmitt to the maximum eight-year sentence on 

Count II, Class C felony battery resulting in serious bodily harm, and an 

additional eight years on Count VI, habitual offender. Dimmitt argues that the 

eight-year sentence for being a habitual offender violates the statute because it is 

an additional fixed term greater than the four-year advisory sentence for a Class 

C felony. Dimmitt mischaracterizes the statute. Section 35-50-2-1.3 states that 

it does not apply to the sentence for the underlying offense. The habitual 

offender statute does not carry the same advisory sentence as the statute 

governing Class C felonies. Indiana Code section 35-50-2-8(h), as was in effect 

at the time Dimmitt committed the instant offenses, provided that “[t]he court 

shall sentence a person found to be a habitual offender to an additional fixed 

term that is not less than the advisory sentence for the underlying offense nor 

more than three (3) times the advisory sentence for the underlying offense.” As 

such, the eight-year enhancement for being a habitual offender did not violate 

the statute as the trial court could have sentenced Dimmitt up to twelve years 

(three times the four-year advisory sentence for the underlying Class C felony). 

[19] However, we note that the trial court erred in applying the habitual offender 

sentence as a separate count. The State concedes this point and notes that a 

habitual offender finding does not constitute a separate crime, nor does it result 

in a separate sentence. Rather, it is a sentence enhancement imposed upon the 

underlying felony conviction. Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 

2001). As such, remand is necessary to remedy this error. 
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B. Convictions Arising Out of One Episode of Criminal 

Conduct

[20] Dimmitt claims that his aggregate sentence of eleven years for Class C felony 

battery, Class D felony criminal gang activity, and Class A misdemeanor 

battery, violated Indiana Code section 35-50-1-2(c) and should be reduced to a 

term not greater than ten years. 

Except as provided in subsection (d) or (e), the court shall determine 

whether terms of imprisonment shall be served concurrently or 

consecutively .... [T]he total of the consecutive terms of 

imprisonment, exclusive of terms of imprisonment under [Indiana 

Code section] 35-50-2-8 and [Indiana Code section] 35-50-2-10, to 

which the defendant is sentenced for felony convictions arising out of 

an episode of criminal conduct shall not exceed the advisory sentence 

for a felony which is one (1) class of felony higher than the most 

serious of the felonies for which the person has been convicted.

[21] Dimmitt was sentenced to eight years on the Class C felony, two years on the 

Class D felony, and one year on the misdemeanor. At Dimmitt’s sentencing, 

the State opined that Section 35-50-1-2(c) would only apply to the two felony 

convictions and that, under that statute, Dimmitt could be sentenced to a 

maximum aggregate term of ten years for the two felony convictions (the 

advisory sentence for a Class B felony) and one additional year for the 

misdemeanor. Dimmitt claims that his misdemeanor conviction should have 

been included in the consecutive sentencing limitation of Section 35-50-1-2. 

The State concedes on appeal that its prior assertion at trial was incorrect and 

that the statute has been interpreted to include misdemeanors in addition to 

felonies (see Purdy v. State, 727 N.E.2d 1091 (Ind. Ct. App. 2000)). However, 
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the State argues that the Section 35-50-1-2 does not apply to Dimmitt’s 

misdemeanor conviction because the offenses did not arise out of a single 

episode of criminal conduct. We do not agree with the State’s position in this 

regard. 

[22] At the sentencing hearing, the State conceded that the offenses occurred as part 

of a single episode of criminal conduct. Despite this apparent waiver, the State 

now claims that the two separate batteries were not part of a single episode of 

conduct because they were committed against two separate victims. The phrase 

“episode of criminal conduct” means “offenses or a connected series of offenses 

that are closely related in time, place, and circumstance.” Ind. Code § 35-50-1-

2(b). The two batteries took place approximately a few minutes apart, occurred 

as part of the same conflict, in the same place, and between the same groups of 

people. The only material distinction between the two crimes was the identity 

of the victim. This distinction alone is not enough to determine that the 

offenses were not part of the same episode of criminal conduct. 

[23] In Harris v. State, 861 N.E.2d 1182 (Ind. 2007), Harris was convicted of two 

counts of sexual misconduct with a minor. The two offenses occurred 

approximately five minutes apart in the same apartment against two different 

victims. The Indiana Supreme Court determined that the two offenses were a 

single episode of criminal conduct and reduced Harris’s sentence accordingly. 

Id. at 1189. In reaching this conclusion, the Court noted two other cases from 

the Indiana Court of Appeals which similarly involved multiple victims and 

longer time spans between offenses, yet each was determined to be a single 
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“episode.” Id. (citing Trei v. State, 658 N.E.2d 131 (Ind. Ct. App. 1995) and 

Ballard v. State, 715 N.E.2d 1276 (Ind. Ct. App. 1999)). We see no reason to 

distinguish Dimmitt’s offenses. Accordingly, we remand with instructions to 

reduce Dimmitt’s eleven-year sentence for felony battery, felony criminal gang 

activity, and misdemeanor battery, to ten years. 

Conclusion

[24] We reverse the trial court’s sentence and remand with instructions that (1) the 

eight-year habitual offender sentence be imposed as an enhancement rather 

than a separate consecutive sentence and (2) the aggregate sentence for felony 

battery, misdemeanor battery, and criminal gang activity, be reduced from 

eleven to ten years, which is the maximum permitted by statute at the time the 

crimes were committed in the course of a single episode of criminal 

misconduct. 

[25] The judgment of the trial court is affirmed in part, reversed in part, and 

remanded with instructions.

Najam, J., and Mathias, J., concur.