The convictions of a gang member stemming from his role in a bar fight were upheld by the Court of Appeals Wednesday, but the judges ordered his sentence shortened because the convictions all occurred during a single episode of criminal conduct.
Brent Anthony Dimmitt got into a fight at Lafayette bar with a group of men. While inside the bar, he showed off his gang tattoos and told the other men that he was part of the Rebel Cause gang. The gang has a history of violence and attacking people. Two men were injured in the fight, one seriously.
Dimmitt was convicted of Class C felony battery, Class A misdemeanor battery, Class D felony criminal gang activity, and being a habitual offender. He was sentenced 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 18 years served and one year suspended to probation.
He claimed in Brent Anthony Dimmitt v. State of Indiana, 79A02-1406-CR-443, that the trial court committed fundamental error by failing to properly instruct the jury on the elements of a charge of criminal gang activity. But the judges found no fundamental error because there was no substantial harm to Dimmitt. The state provided substantial evidence with created a nexus between Dimmitt’s offenses and his furthering the goals of his criminal gang.
The appeals court ordered his sentence revised, however, because Dimmitt’s convictions stem from a single episode of conduct, so they should be capped at 10 years. And his habitual offender sentence should not be a separate count, but instead should be a sentence enhancement on the underlying felony conviction. The appellate court remanded for further proceedings to correct that issue as well as resentence Dimmitt to 10 years on his convictions instead of 11 years.