Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 1 of 14

MEMORANDUM DECISION

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

Karen M. Heard

Vanderburgh County 

Public Defender’s Office

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana 

Evan Matthew Comer

Deputy Attorney General 

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Gerald Duane Lewis,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 31, 2018

Court of Appeals Case No.

18A-CR-1315

Appeal from the 

Vanderburgh Circuit Court

The Honorable 

Michael J. Cox, Magistrate

Trial Court Cause No.

82C01-1607-F1-4056

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 2 of 14

[1] Gerald Duane Lewis (“Lewis”) appeals his thirty-six-year sentence following 

his guilty plea for Level 1 felony attempted murder.1 On appeal, he raises the 

following restated issues:

I. Whether the trial court abused its discretion when it did not 

recognize certain mitigating factors; and

II. Whether, under Appellate Rule 7(B), Lewis’s sentence is 

inappropriate in light of the nature of the offense and the 

character of the offender.

[2] We affirm.2

Facts and Procedural History3

[3] Lewis did not know Crystal Cash (“Cash”) but, on the afternoon of July 10, 

2016, the two had a “random” encounter at the intersection of North First 

Avenue and West Columbia Street in Evansville, Vanderburgh County, 

Indiana. Appellant’s Conf. App. Vol. II at 83. The two began to chat and Cash, 

who is a transgender woman, invited Lewis to come to the massage parlor that 

she ran out of an office building on North First Street, a location that also 

 

1

See Ind. Code §§ 35-42-1-1(1); 34-41-5-1. 

2 Responding to a request for restitution, the trial court also entered a $76,291.97 civil judgment in favor of 

the victim. Lewis does not appeal that judgment. Tr. Vol. II at 29. 

3 To establish the facts of this case, we, like the State, cite in part to the probable cause affidavit. Appellant’s. 

Conf. App. Vol. II at 83-84. The probable cause affidavit was attached to the presentence investigation report 

and is also cited by Lewis in his appellant’s brief. Id. at 83-84; Appellant’s Br. at 8-10.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1315 | December 31, 2018 Page 3 of 14

served as her personal residence. Id. Lewis wore combat boots and an “Israeli 

Christian” shirt with gold fringe and had tattoos on both of his arms. Later 

investigation revealed that Lewis was a member of a “black nationalist hate 

group” known as “Israel United in Christ.” Id. at 43, 68. Initially, Lewis

appeared to be “very nice,” complementing Cash on her vehicle and asking her 

questions about herself and her job. Id. Once inside the office, Cash showed 

Lewis her business website. Id. at 84. Soon after, Lewis attempted to enter 

restricted areas of the office, which were closed off from the office; he also used

the restroom. Id. Lewis seemed to be in the restroom for a long time, and 

when he came out, he had “turned into a monster.” Id. Cash fled to her 

bedroom, but Lewis followed her, pulled out a gun, and shot Cash in the face, 

yelling “die, die faggot.” Id. Cash pretended to be dead while Lewis stole all 

forms of her identification, including her passport, several credit cards and the 

keys to Cash’s office. Id. Lewis then left. 

[4] Cash called 911 and informed dispatch that she had been shot. When police 

and medical personnel arrived on the scene, they found Cash lying on the front 

steps of the office building with a gunshot wound on the left side of her face. Id.

at 83. Cash had difficulty speaking and was unable to provide information to 

investigators. Police followed a trail of blood splatters into Cash’s office and

later, after obtaining a search warrant, found a “spent F.C. 9 mm Lugar shell 

casing” in Cash’s bedroom. Id. at 83. 

[5] Paramedics transported Cash to Deaconess Hospital in Evansville where she 

was treated for her wound. Id. Investigating officers attempted to speak with 
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Cash at the hospital, but she was intubated and unable to speak. Id. Through 

written communications, however, Cash was able to describe Lewis to police. 

That information enabled police to find Lewis and the gun he used to shoot 

Cash. Lewis had no permit for the gun. The police arrested Lewis. 

[6] On July 13, 2016, the State charged Lewis with Level 1 felony attempted 

murder, Level 2 felony robbery resulting in serious bodily injury, and Class A 

misdemeanor carrying a handgun without a license. The advisory sentences for 

the Level 1 and Level 2 counts were thirty years and seventeen and a half years, 

respectively. The State also filed a sentence enhancement alleging that Lewis 

committed the underlying offense of attempted murder while using a firearm. 

In September 2016, at defense counsel’s request, the trial court ordered Lewis to 

submit to a psychological examination to determine his competence to stand 

trial. 

[7] Lewis was first examined by a psychologist, Dr. Frederick Nolen (“Dr. Nolen”)

on September 27, 2016. Dr. Nolen diagnosed Lewis with provisional 

dissociative identity disorder, major neurocognitive disorder, suspected child 

physical abuse, suspected child sexual abuse, post-traumatic stress disorder, and 

alcohol use disorder. Id. at 33. Dr. Nolen concluded that Lewis was not 

competent to stand trial at that time because his dissociative identity disorder

and major neurocognitive disorder would make it impossible for him to 

mentally track the proceedings, understand their significance, and participate in 

his own defense. Id. at 33-34. 
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[8] Lewis was examined by Dr. David Cerling (“Dr. Cerling”) on October 14, 2016 

and November 3, 2016. Dr. Cerling determined that Lewis was able to 

“identify the charges against him as including attempted murder, robbery, and 

having an unlicensed handgun.” Id. at 40. Lewis told Dr. Cerling that he could 

not recall the incident leading to the charges and said that the incident as 

described to him was “totally inconsistent with his behavior.” Id. at 41. While 

Dr. Cerling concluded that it appeared “likely that [Lewis] does have a 

significant mental illness,” he stopped short of offering a diagnosis, noting “the 

defendant displayed no clear indications of a thought disorder.” Id. at 42. Dr. 

Cerling observed that “the defendant is endorsing symptoms that are also quite 

atypical and inconsistent with psychotic disorders.” Id. Dr. Cerling concluded,

“It appears highly probable . . . that [Lewis] has an age-appropriate factual and 

rational understanding of court principles and procedures relevant to the 

charges he is facing in court. He understands the basis of the charges against 

him, although he states he has no recollection of the reported incident.” Id. 

[9] Lewis filed a request for a sanity evaluation. The trial court granted the request 

and ordered Lewis to undergo a sanity evaluation with Dr. Cerling. Following 

his additional assessments and interview of Lewis, Dr. Cerling reiterated that 

Lewis was “overreporting symptoms” and stated that he was unable to issue a 

definitive diagnosis. Id. at 44. Dr. Cerling wrote, “In light of potential 

overreporting of symptoms as well as reported amnesia for the events, any 

definitive opinion regarding his ability to perceive wrongfulness at the time of 

the event cannot be reached.” Id. at 44. In March 2017, the trial court 
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determined that Lewis was not competent to stand trial and temporarily stayed 

the proceedings. Id. at 45. Lewis was then transported to the Logansport State 

Hospital where he received inpatient mental health treatment. Id. at 72. 

[10] On September 27, 2017, psychologist Dr. Megan O’Grady (Dr. O’Grady”) 

examined Lewis and issued a report finding that Lewis was competent to stand 

trial. Id. at 72. Dr. O’Grady reported that Lewis did not appear to meet the 

criteria for the “previous diagnoses [by Dr. Nolen] of Dissociative Identity 

Disorder, Major Neurocognitive Disorder Due to TBI, and Posttraumatic Stress 

Disorder. Id. at 77. She also concluded that a more precise diagnosis was not 

possible because, “[w]hile hallucinations and delusions are typical features of 

Schizophrenia, there are a number of factors that do argue against such a 

diagnosis, such as the discrepancy between [Lewis’s] self-report and 

observations by others, a course of illness that is inconsistent with that which is 

typically seen in Schizophrenia, and multiple recent test scores suggesting 

exaggeration of symptoms.” Id. 

[11] On October 5, 2017, after the trial court determined that Lewis was competent

to stand trial, he was transported to the Vanderburgh County Jail. On February 

14, 2018, Lewis pleaded guilty to Level 1 felony attempted murder, and the 

State agreed to dismiss the remaining two counts and the sentencing 

enhancement. The plea agreement was open regarding sentencing but 

contained the question, “Are you aware that the maximum possible sentence in 

this case is 40 years and the minimum possible sentence is 20 years with a 
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possible fine of up to $10,000?” Appellant’s Conf. App. Vol. II at 63. Lewis 

marked “yes” to this question and signed the plea agreement. Id. 

[12] The trial court accepted Lewis’s plea. A sentencing hearing was held in May 

2018, during which the trial court considered Lewis’s PSI, a letter filed by Cash, 

comments of Lewis, and reports of the psychologists who had performed the 

mental health evaluations. At the close of arguments, the trial court made the 

following sentencing statement:

Upon that conviction, the Court does note that there are 

mitigating and aggravating factors. The Court does acknowledge 

that the defendant has no criminal history, and that he has expressed 

his remorse and accepted his responsibility; however, the Court does 

not find that the crime occurred under circumstances unlikely to 

reoccur, nor does the Court find that the defendant acted under 

strong provocation. I don’t know, and I don’t know that anyone 

here in the Courtroom knows, why the defendant acted as he did, 

but the result of his actions are that we have a victim who has 

been significantly harmed and injured, and the injury and harm 

to the victim are much greater than the elements necessary to 

prove the commission of the offense. What amounts to a 

completely unprovoked shooting of the victim in the face, which 

resulted in the victim losing much of the use of her bone and 

muscles in her face, and that has caused innumerable issues for 

the victim just to chew her food or to speak, among other things. 

The Court does not find any grounds tending to excuse or justify 

this crime but, again, the Court did consider the defendant is 

pleading guilty, and thereby saving the State valuable time and 

resources. The Court finds the aggravating circumstances do outweigh

the mitigating, and the Court now sentences [Lewis] in Count I to 

the Indiana Department of Correction for a period of thirty-six 

(36) years, that sentence is to be served executed.
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Sentencing Tr. at 25-26 (emphasis added). Lewis now appeals his sentence.

Discussion and Decision

I. Mitigating Factors

[13] Lewis contends that the trial court abused its discretion during sentencing when 

it did not consider certain mitigating circumstances. Sentencing decisions rest 

within the sound discretion of the trial court and are reviewed only for an abuse 

of discretion. Green v. State, 65 N.E.3d 620, 635 (Ind. Ct. App. 2016) (citing 

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)), trans. denied (2017). “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. at 635-36 (quoting Anglemyer, 

868 N.E.2d at 490). A trial court may be found to have abused its sentencing 

discretion by: (1) failing to enter a sentencing statement; (2) entering a 

sentencing statement that cites reasons unsupported by the record; (3) entering a 

sentencing statement that omits reasons that are clearly supported by the record 

and that were advanced by the defendant; and (4) entering a sentencing 

statement in which the reasons given are improper as a matter of law. Id. at 

636.

[14] On appeal, Lewis claims that the trial court abused its discretion during 

sentencing when it did not give sufficient consideration to Lewis’s: (1) lack of 

criminal history; (2) decision to plead guilty; and (3) expression of remorse. 

Appellant’s Br. at 13-14. He also contends that the trial court abused its
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discretion when it “did not even mention Lewis’s mental illness” as a mitigating 

circumstance. Id. at 12. 

[15] The trial court is not required to find mitigating factors, nor is it obligated to 

accept as mitigating each of the circumstances proffered by the defendant.”

Green, 65 N.E.3d at 636. “The relative weight or value assignable to reasons 

properly found, or those that should have been found, is not subject to review 

for abuse of discretion.” Id. A trial court abuses its discretion in sentencing if it 

overlooks “substantial” mitigating factors that are “clearly supported by the 

record.” Id. (citing Anglemyer, 868 N.E.2d at 491). The burden is on the 

defendant to establish that the mitigating evidence is both significant and clearly 

supported by the record. Id.

[16] We disagree with Lewis’s contention that the trial court did not give sufficient 

consideration to his: (1) lack of criminal history; (2) decision to plead guilty; 

and (3) expression of remorse as mitigating circumstances. At the close of the 

sentencing hearing, the trial court specifically identified these three mitigating 

circumstances, discussed aggravating circumstances, and specifically found that 

the “aggravating circumstances do outweigh the mitigating” circumstances. 

Sentencing Tr. at 26 (emphasis added). We may not consider whether a trial 

court abused its discretion when it determined the relative weight or value 

assignable to reasons properly found, or those that should have been found. See 

Green, 65 N.E.3d at 636. We find no abuse of discretion regarding these three 

factors.
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[17] Likewise, we find no abuse of discretion regarding the trial court’s handling of 

Lewis’s mental health history. Lewis argues that the trial court abused its 

discretion when it “did not even mention Lewis’s mental illness” as a mitigating 

circumstance. Appellant’s Br. at 12. Three psychologists examined Lewis 

during the State’s investigation and prosecution. Dr. Cerling reported that 

Lewis’s “responses on the M-FAST and the SlMS reflect a pattern of reporting 

symptomatology that is inconsistent with typical presentations for a psychotic 

disorder, an affective disorder, or some type of neurologic impairment, such as 

amnesia.” Appellant’s Conf. App. Vol. II at 41. Doctors Cerling and O’Grady 

determined that Lewis had overreported his symptoms, and therefore, they

were unable to conclusively diagnose Lewis’s condition or conditions. Id. at 44. 

The only nexus presented to show a connection between Lewis’s mental illness 

and his having committed attempted murder was presented by defense counsel 

when, during the sentencing hearing, he said that Lewis’s attack was triggered 

by sexual contact with Cash. Tr. Vol. II at 19. This statement, however, is mere 

conjecture, and Lewis provided no evidence to substantiate that claim. Id. at 

18-19. The evidence does not establish that Lewis’s history of mental illness 

was in any way connected to his decision to attack Cash. 

[18] The trial court was well aware of Lewis’s mental health history and ordered 

numerous mental health evaluations of Lewis to determine whether he knew 

what he was doing when he committed the crime and whether he was 

competent to stand trial. A “trial court is not required to find mitigating factors, 

nor is it obligated to accept as mitigating each of the circumstances proffered by 
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the defendant.” Green, 65 N.E.3d at 636. The trial court did not abuse its 

discretion in its consideration of mitigating circumstances.

II. Inappropriate Sentence

[19] Lewis also contends that his thirty-six-year executed sentence is inappropriate. 

Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence 

authorized by statute if, after due consideration of the trial court’s decision, the 

[c]ourt finds that the sentence is inappropriate in light of the nature of the 

offense and the character of the offender.” Our Supreme Court has explained 

that the principal role of appellate review should be to attempt to leaven the 

outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v. 

State, 895 N.E.2d 1219, 1225 (Ind. 2008); Yoakum v. State, 95 N.E.3d 169, 176 

(Ind. Ct. App. 2018), trans. denied. We independently examine the nature of 

Lewis’s offense and his character under Appellate Rule 7(B) with substantial 

deference to the trial court. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). 

“[W]e 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.’” Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 

2013), trans. denied. Whether a sentence is inappropriate ultimately depends 

upon “the culpability of the defendant, the severity of the crime, the damage 

done to others, and a myriad of other factors that come to light in a given case.” 

Cardwell, 895 N.E.2d at 1224. Lewis bears the burden of persuading us that his 

sentence is inappropriate in light of the nature of the offense and his character. 

Id.
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[20] “The nature of the offense is found in the details and circumstances of the 

commission of the offense and the defendant’s participation.” Croy v. State, 953 

N.E.2d 660, 664 (Ind. Ct. App. 2011). Lewis admits that “[t]here is no doubt 

that the nature of the offense is very serious” and that “[t]he crime of attempted 

murder is extreme.” Appellant’s Br. at 15. The Indiana General Assembly

recognized these factors when it established a sentencing range of twenty to 

forty years with an advisory sentence of thirty years. Id. Lewis contends that

he “is not arguing that the offense is not serious but rather that thirty-six years, 

which is six years over the advisory, is inappropriate. Id. We are not 

persuaded. 

[21] Lewis pleaded guilty to attempted murder under the following circumstances. 

Lewis randomly met Cash on the street, the two chatted in a friendly way, and 

Lewis went willingly with Cash to her office building, which also served as her 

home. Lewis used the restroom. Cash said that Lewis seemed to be in the 

restroom for a long time, and that when he came out, he had “turned into a 

monster.” Appellant’s Conf. App. Vol. II at 84. Cash fled to her bedroom, but 

Lewis followed her, pulled out a gun, and shot Cash in the face, yelling “die, 

die faggot.” Id. Lewis left Cash for dead while he stole all forms of ID, 

including her passport, several credit cards and the keys to Cash’s office. Id. 

[22] Cash was the victim of an unprovoked shooting. Sentencing Tr. at 84-85. She

was hospitalized for about one month, underwent two emergency surgeries, 

had a complete blood transfusion, had her jaws wired shut, was placed on a 

breathing machine, and had a feeding tube inserted into her abdomen. 
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Appellant’s Conf. App. Vol. II at 99. Cash suffered lasting physical damage 

including partial loss of her tongue, jaw bone and teeth, nerve damage, and 

pain. Id. She has developed a speech impediment and has a small hole in the 

left side of her face that, as of the sentencing hearing, had not healed. Id.

Lewis’s actions resulted in a “victim who has been significantly harmed and 

injured, and the injury and harm to the victim are much greater than the 

elements necessary to prove the commission of the offense.” Id. at 84. The 

nature of the offense does not warrant a revision of Lewis’s sentence.

[23] Regarding his character, Lewis contends that his sentence is inappropriate 

because he suffers from mental health issues, has no criminal history, showed 

remorse, and pleaded guilty. The State counters that whatever good character

Lewis has is outweighed by his membership in “Israel United in Christ,” a 

“black nationalist hate group.” Id. at 43, 68. When Lewis shot Cash, he 

shouted, “die, die faggot.” Id. at 13. Lewis wanted to kill Cash. Id. at 83. 

During the sentencing hearing, Lewis told the trial court that he had no 

knowledge of Cash’s gender identity when he shot her and said that his use of 

the word “faggot” was “just an exaggeration.” Sentencing Tr. at 25. However, 

defense counsel admitted that Lewis’s membership in “Israel United in Christ” 

may have played a role in the shooting, saying, “Perhaps the teachings of that 

group planted a seed, a negative seed, toward transgendered individuals in my 

client’s brain, but his actions were not at the direction or involved with that 

group at all.” Id. at 21. Furthermore, Lewis’s use of the homophobic slur 

suggests that he had knowledge of Cash’s sexual and gender identities at the 
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time of the shooting. The record establishes that Lewis committed a targeted 

act of violence. We do not believe that Lewis’s character warrants a revision of 

his sentence.

[24] Our task on appeal is not to determine whether another sentence might be more 

appropriate; rather, the inquiry is whether the imposed sentence is 

inappropriate. Barker, 994 N.E.2d at 315. Lewis has failed to carry his burden 

of establishing that his sentence is inappropriate in light of the nature of the 

offense and his character.

[25] Affirmed.

Riley, J., and Robb, J., concur.