Attorneys for Appellant Attorneys for Appellee
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Lorraine L. Rodts Matthew D. Fisher
Special Assistant to the Public Defender Ellen H. Meilaender
Deputy Attorneys General
Attorneys for Amicus Curiae
Marion County Public Defender Agency Attorneys For Amicus Curiae Indiana
Ann M. Sutton Prosecuting attorneys council
Kathleen M. Sweeney Kim Hall
Indianapolis, IN Knox, IN
Michael R. Limrick Stephen J. Johnson
Indianapolis, IN Indianapolis, IN
Joel M. Schumm
Appeal from the Noble Circuit Court, No. 57C01-0106-CF-065
The Honorable G. David Laur, Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 57A04-0307-CR-371
May 10, 2005
When Heath arrived, people presumably on Rupley and Demings side surrounded his vehicle.
They kicked and pounded the car and struck Heath and his nephew.
Heath then shot two members of the raucous crowd, Justin Knox and
Josh Deming, in the leg and in the face, respectively. Because the
remaining persons surrounding the car had not dispersed to Heaths satisfaction, he fired
two more shots, one of which struck the passenger-side door of a nearby
parked truck. Three people were in the bed of that truck, and
another person was in the cab. Heath then made a quick departure.
The State charged Heath with two counts of class C felony criminal recklessness
for Knox and Demings injuries. It charged a third count of class
D felony criminal recklessness for the two subsequent shots. The jury found
Heath guilty on Count III only. The Indiana Code provides that the
penalty for a class D felony is a presumptive fixed term of one
and one-half years, with a maximum of one and one-half years added for
aggravating circumstances and a maximum of one year subtracted for mitigating circumstances.
Ind. Code Ann. § 35-50-2-7 (West 2004). The trial court found the
following aggravating factors: 1) the crime was committed in the presence of
a person less than 18-years-old; 2) there were many unarmed observers in extreme
danger nearby; and 3) the circumstances represented the [w]orst type of Class D
Criminal Recklessness facts. (Appellants App. at 504.) It found Heaths lack
of a prior criminal record as a mitigator. The court then sentenced
Heath to two and a half years.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.