Shamar Duncan, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Shamar Duncan and his brothers Robert and Tyrese Duncan provoked but lost a fight with multiple Dutch soldiers. Beaten, Shamar and his brothers got in Robert's truck and drove to the area where the unarmed soldiers were standing outside. Shamar fired at least nine shots from the back seat of Robert's truck, killing Simmie Poetsema and seriously injuring two other soldiers. Shamar was charged with murder, two counts of attempted murder, and disorderly conduct. A jury found Shamar guilty of one count each of murder, attempted murder, aggravated battery as a lesser-included to attempted murder, and disorderly conduct. The trial court sentenced Shamar to 105 years of incarceration. Shamar now appeals, raising two issues for our review, which we restate as follows:

1. Whether the State presented sufficient evidence to support Shamar's attempted murder conviction; and

2. Whether the trial court abused its discretion in identifying aggravating factors at sentencing.

[2] We affirm.

Facts and Procedural History

[3] In August 2022, soldiers from a classified unit within the Royal Netherlands Army (collectively, the “Soldiers”) were training at the Muscatatuck Urban Training Center in Butlerville, Indiana. More than 20 of the Soldiers traveled to Indianapolis on a weekend pass to stay at the downtown Indianapolis Hampton Inn (the “Hotel”). On August 26, the Soldiers split into smaller groups for dinner and drinks at nearby restaurants and bars, including Club INVY. That same night, Shamar, Tyrese, and Robert (collectively, “the Duncans”) drove to downtown Indianapolis, parking on Meridian Street, approximately one block south of the Hotel.

[4] The group of Soldiers at Club INVY left the bar at approximately 3:00 a.m. and walked north on Meridian Street in the direction of the Hotel. The Duncans were standing between Club INVY and the Hotel, trying to “start something with somebody” and yelled at the Soldiers while they tried to walk by. Tr. Vol. III at 151. The Soldiers tried to “deescalate” and walk past the Duncans, id. at 152, but the Duncans followed and started shoving the Soldiers. The fight escalated but wound down shortly after one soldier, Nick,¹ punched and knocked out Tyrese. Timothy Lee, an uninvolved bystander, captured the end of the fight on video. The very beginning of the captured footage shows Shamar “[t]ussling” or “wrestling” with another soldier, Richard, Tr. Vol. V at 138, and repeatedly yelling at Robert to “unlock the car” after Richard walked away, State's Ex. 172 at 00:05–00:18. Another witness heard Shamar say, “Get the strap,” meaning a handgun, in addition to yelling at Robert to unlock the truck. Tr. Vol. III at 183. Shamar's loaded handgun was in Robert's truck. The end of the video footage shows the Soldiers returning to the Hotel and the Duncans walking to Robert's truck. The Hotel was visible from Robert's truck.

[5] After the Duncans returned to Robert's truck, they drove north on Meridian Street before stopping just outside the Meridian Street entrance of the Hotel. Surveillance footage shows that Robert's truck was in the travel lane closest to the curb, and his right turn signal was flashing. When Robert stopped, approximately ten Soldiers were standing outside in front of the Hotel. Within seconds of Richard walking outside of the Hotel, Shamar fired at least nine shots at the Soldiers from the backseat of Robert's truck. Shamar shot Richard twice—once in the front of his shoulder and once in his thigh. Shamar shot Poetsema in the back of the head. Shamar shot Marcel through his right buttock, and the bullet exited out his groin.

[6] Poetsema died from the gunshot wound to the back of his head despite the first aid efforts of his fellow soldiers. Richard returned to the Netherlands with bullet fragments remaining in his shoulder, which became infected and required surgical removal. Marcel's wound was a catastrophic “pulsing wound,” so he, a trained nurse, was required to “coach[ ]” other soldiers to “push[ ] their thumbs into the wound” to stop the bleeding and keep him from dying of blood loss. Tr. Vol. III at 29. After recovering for “six weeks at home” and devoting an additional five months at rehabilitation, Marcel was able to return to duty but will still “never be 100 percent anymore.” Id. at 30.

[7] During the investigation, law enforcement officers spoke with the Soldiers and witnesses to the fight. They also secured surveillance videos from local businesses showing the movements of Robert's truck and the Soldiers getting shot. Shamar was detained days later, and the State charged him with one count of murder,² two counts of attempted murder as Level 1 felonies,³ and one count of disorderly conduct as a Class B misdemeanor ⁴ .

[8] At trial, Shamar testified that he was “angry” when he shot at the unarmed Soldiers from the backseat of Robert's truck because of “what just happened”—that is, the fight. Tr. Vol. V at 120. Shamar denied aiming at any specific soldier, but he agreed that he had “wrestl[ed]” with Richard during the fight, id. at 138, and that he had fired at least nine shots at the Soldiers after Richard walked out of the Hotel. Shamar knew that pointing a handgun at a person and shooting could cause that person to die.

[9] The jury found Shamar guilty of one count each of murder, attempted murder, aggravated battery as a Level 3 felony,⁵ and disorderly conduct. The trial court sentenced Shamar to a total of 105 years of incarceration. This appeal ensued.

Discussion and Decision

1. The State Presented Sufficient Evidence to Support Shamar's Attempted Murder Conviction

[10] Shamar argues that the State presented insufficient evidence at trial to support his conviction for attempted murder.⁶ Our standard of review for such a claim is as follows:

“A conviction is supported by sufficient evidence if ‘there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015)). This Court reviews only the evidence most favorable to the verdict and the reasonable inferences therefrom, and will reverse only where it is shown that “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Teising [v. State], 226 N.E.3d [780,] 783 [(Ind. 2024)].

Konkle v. State, 253 N.E.3d 1068, 1090–91 (Ind. 2025). We do not reweigh the evidence or reassess witness credibility. Id. at 1090 (quoting Teising, 226 N.E.3d at 783).

[11] Shamar argues that the State did not present sufficient evidence establishing that he had the “ ‘conscious intent to kill’ Richard.” Appellant's Br. at 15. In order to convict Shamar of attempted murder, the State had to prove beyond a reasonable doubt that Shamar, acting with the specific intent to kill, engaged in conduct that constituted a substantial step toward the commission of murder. See Ind. Code §§ 35-42-1-1(1), 35-41-5-1(a); Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015) (quoting Hopkins v. State, 759 N.E.2d 633, 637 (Ind. 2001)). “Intent to kill may be inferred from the nature of the attack and the circumstances surrounding the crime.” Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002) (citing Nunn v. State, 601 N.E.2d 334 (Ind. 1992)). Additionally, “intent to kill may be inferred from the deliberate use of a deadly weapon in a manner likely to cause death or serious injury,” Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008) (citing Wilson v. State, 697 N.E.2d 466, 476 (Ind. 1998)), including when a defendant “fir[es] a gun in the direction of an individual,” id. (citing Jones v. State, 536 N.E.2d 267, 270 (Ind. 1989)).

[12] Shamar likens his actions to a drive-by shooting, which the Indiana Supreme Court recognized was the “paradigm problematic attempted murder case” because “[i]n such cases it is often unclear whether the defendant intended to murder or batter.” Richeson v. State, 704 N.E.2d 1008, 1010 (Ind. 1998). We disagree with Shamar's characterization of the shooting as a drive-by given that the Soldiers presented clear targets and he had just been in a fight with them.

[13] Shamar's remaining arguments are clear requests for us to reweigh the evidence and reassess witness credibility, which we will not do. See Konkle, 253 N.E.3d at 1090. For instance, Shamar argues that the evidence shows a “rash discharge” of his handgun “in the general direction” of the Soldiers, not that he intended to kill Richard. Appellant's Br. at 15. In support of this claim, Shamar points to his lack of handgun experience, the short time the truck was stopped outside the Hotel, and the “sporadic impact pattern of the bullets.” Id. Here, the probative evidence and reasonable inferences supporting the verdict show that (1) Shamar and his brothers fought with the Soldiers minutes before the shooting; (2) Shamar “[t]ussl[ed]” with Richard at the end of the fight, Tr. Vol. V at 138; (3) Shamar's loaded handgun was in Robert's locked truck; (4) as soon as Richard walked away from Shamar, ending the fight, Shamar began repeatedly yelling at Robert to “unlock the car,” State's Ex. 172 at 00:05–00:18, and said he wanted to “get the strap,” Tr. Vol. III at 183; (5) Shamar was angry at losing the fight; (6) Richard was the last person to walk out of the Hotel, and Shamar began shooting from less than 30 feet away within seconds of Richard walking out; (7) two of Shamar's nine shots struck Richard; and (8) Shamar knew that pointing a handgun at a person and shooting could cause that person to die. With the evidence that was presented, it was not unreasonable for the jury to infer Shamar intended to kill Richard when he fired a handgun in Richard's direction from less than 30 feet away. See Shelton v. State, 602 N.E.2d 1017, 1022 (Ind. 1992) (holding that intent to kill may be inferred from firing a handgun in a person's direction “from a short distance away.”). We therefore cannot say the State failed to present sufficient evidence to support Shamar's conviction for attempted murder.

2. The Trial Court Did Not Abuse Its Discretion in Identifying Aggravating Factors

[14] Shamar argues that the trial court abused its discretion by identifying improper aggravating circumstances. We review a trial court's sentencing decision for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)), reh'g denied (Aug. 17, 2023). “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. (quoting Anglemyer, 868 N.E.2d at 490). “A court does not abuse its discretion if the record supports its reasons for imposing a sentence and those reasons are proper as a matter of law.” Id. (citing Anglemyer, 868 N.E.2d at 490–91).

[15] Shamar claims the trial court identified only one aggravating factor and challenges only the trial court's finding that the “harm, injury, and loss with respect to Counts I through III were very significant and far greater than the elements required.” Appellant's Br. at 15–16 (quoting Tr. Vol. VI at 44). As an initial matter, we note that this claim is incorrect as the trial court additionally found the nature and circumstances of the crimes to be aggravating as well. At sentencing, the trial court issued the following statement on aggravators:

[T]his cause is aggravated compared to most other cases of this kind, in my opinion.

The Defendant's actions were extremely selfish, callous, and wanton at the time of the event. Mr. Duncan knowingly shot multiple rounds into a crowd of unarmed individuals standing in front of a hotel on a busy, crowded night in downtown Indianapolis. He struck three individuals, but he could have struck many others. And he did so really, utterly, without any provocation at the time of the shooting.

At the time of the shooting, when the Defendant was in the car and when the men were standing in front of the hotel, the Defendant was not in fear for his life or someone else's. He was angry about the outcome of a fistfight that the Defendant and/or his brothers provoked.

* * *

I would also, though, say that the court's considered that the evidence at trial showed that the Defendant's actions caused an incredible amount of panic, trauma, and fear among the bystanders that were also standing around at the time this incident took place․

* * *

I'm concerned that the Defendant views his actions as being the normal, natural consequence of having lost a fistfight, which suggests to me that if the Defendant were to find himself similarly situated again in the future, that the same thing might happen again in the future, which tells me that the Defendant is dangerous.

* * *

With respect to aggravating circumstances, the Court finds that the harm, injury, and loss with respect to Counts I through III were very significant and far greater than the elements required. By shooting multiple rounds into a crowd, the Defendant inflicted trauma on multiple individuals. Again, murders always result in significant loss to family members. Mr. Poetsema's loss represented a significant loss to his colleagues in the military. The Defendant didn't know that, but that harm is there, and that harm was suffered by those individuals. With respect to Counts II[ and III], Richard and Marcel suffered significant injuries. Both were shot. The evidence at trial showed that one developed an infection as a result of this. One of these men has lasting nerve damage that he will have to live with forever that has continued to impact him physically, which is far greater than the elements required with respect to Counts II and III․

Tr. Vol. VI at 42–44.

[16] Shamar cites to several cases in support of his assertion that the trial court impermissibly considered harm to Poetsema, Richard, and Marcel as aggravators. See Appellant's Br. at 17 (collecting cases). Shamar claims that the harms suffered by his victims were “presumably accounted for in the advisory sentences for the crimes.” Id. at 18. We disagree. The purpose of sentencing ranges is to account for factual differences in similarly charged crimes. See Gomillia v. State, 13 N.E.3d 846, 852–53 (Ind. 2014) (recognizing that unique circumstances of an offense “justify deviating from the advisory sentence.”).

[17] Here, Shamar was sentenced on his convictions for murder, attempted murder, and aggravated battery. In order to convict Shamar of murder, the State had to prove that he knowingly killed Poetsema. See I.C. § 54-42-1-1(1). In determining that Poetsema's harm was significant and greater than the elements necessary to prove the commission of the offense, the trial court considered that Shamar shot Poetsema with no provocation while Poetsema was unarmed. In order to convict Shamar of attempted murder, the State had to prove that he, acting with the specific intent to kill, engaged in conduct that constituted a substantial step toward the commission of murder. See id. §§ 35-42-1-1(1), 35-41-5-1(a). In determining that Richard's harm was significant and greater than the elements necessary to prove the commission of the offense, the trial court considered that Richard developed an infection from the retained bullet fragments and required surgery upon his return to the Netherlands. In order to convict Shamar of aggravated battery, the State had to prove that he “knowingly or intentionally inflict[ed] injury on [Marcel] that create[d] a substantial risk of death.” Id. § 35-42-2-1.5. In determining that the harm to Marcel was significant and greater than the elements necessary to prove the commission of the offense, the trial court considered that Marcel was left with life-long nerve damage.

[18] The record supports the trial court's findings. First, Poetsema was not involved in the fight, but he was shot while his back was turned to Shamar and died in a foreign country without his family present. Second, attempted murder does not require proof of injury, See I.C. §§ 35-42-1-1(1), 35-41-5-1(a), yet Shamar shot Richard twice. Third, the record supports that Marcel's injury, particularly, would have been excruciating, and it is well-established that the “infliction of grave injury and pain over an extended period of time is sufficient to support an aggravating factor.” Penick v. State, 659 N.E.2d 484, 488 (Ind. 1995). For these reasons, the trial court did not abuse its discretion by finding “that the harm, injury, and loss with respect to Counts I through III were very significant and far greater than the elements required.” Tr. Vol. VI at 44.

[19] Even if the trial court did err in finding that the harms suffered were greater than the elements required, the trial court did not solely rely on that factor in sentencing Shamar. Rather, the trial court emphasized that the nature of the offenses was an aggravating factor. For instance, the trial court found that Shamar shot at a group of unarmed individuals on a crowded street without provocation and “caused an incredible amount of panic, trauma, and fear.” Tr. Vol. VI at 42. The trial court also considered that Shamar shot at the Soldiers as a “natural consequence of having lost a fistfight.” Id. at 43. It is well-established that the nature of the offense is a permissible aggravating circumstance. See Gomillia, 13 N.E.3d at 853. Thus, we believe the trial court would have imposed the same sentence even without considering whether the harm to the victims was “greater than the elements necessary to prove the commission of the offense.” I.C. § 35-38-1-7.1(a)(1). Accordingly, even if the trial court erroneously identified the harm and injury to Poetsema, Richard, and Marcel as aggravating circumstances, any error was harmless because the unchallenged aggravating factors support the sentence the trial court imposed.

Conclusion

[20] In sum, the State presented sufficient evidence to support Shamar's conviction for attempted murder, and the trial court did not abuse its discretion in sentencing Shamar. We therefore affirm the trial court on all issues raised.

[21] Affirmed.

FOOTNOTES

1.   Given the classified nature of the Soldiers’ work for the Royal Netherlands Army, the trial court issued a protective order prohibiting the use of their full names during trial; we, too, refer to the individual soldiers by their first names or pseudonyms.

2.   Ind. Code § 35-42-1-1(1).

3.   I.C. §§ 35-42-1-1(1), 35-41-5-1(a).

4.   I.C. § 35-45-1-3(a)(1).

5.   I.C. § 35-42-2-1.5. The jury convicted Shamar of aggravated battery as a lesser-included charge to attempted murder of Marcel.

6.   Shamar does not challenge the sufficiency of the evidence supporting his convictions for murder, aggravated battery, or disorderly conduct.

Felix, Judge.

Brown, J., and Scheele, J., concur.