Breshawn L. Smith, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] A jury found Breshawn Smith guilty of murder and Level 6 felony criminal recklessness and that he was eligible for a firearm enhancement. The Allen Superior Court ordered him to serve an aggregate eighty-seven-year sentence. Smith appeals and raises three arguments:

I. Whether the State presented sufficient evidence to identify Smith as the person who committed murder and criminal recklessness,

II. Whether the trial court abused its discretion in its consideration of the aggravating circumstances, and

III. Whether Smith's aggregate eighty-seven-year sentence is inappropriate in light of his offenses and his character.

[2] We affirm.

Facts and Procedural History

[3] At approximately 3:20 a.m. on November 16, 2024, Marialuz Munoz suffered a gunshot wound to her head and three gunshot wounds to her torso while she was in the parking lot of a club named Showgirl I in Fort Wayne. Marialuz died at the scene from the gunshot wounds.

[4] When law enforcement officers arrived on the scene, they discovered two additional gunshot wound victims behind the club. Both victims required medical attention for their non-fatal gunshot wounds, and paramedics transported them to a nearby emergency room. One of the victims, Benjamin Crance, described the shooter as a Hispanic male named Jeff. Tr. Vol. 2, p. 135

[5] Marialuz was shot with a .22 caliber firearm. The two males found toward the rear of Showgirl I were shot with a .9 millimeter firearm.

[6] During the investigation of the shootings, Detective Ross McGillivray contacted businesses near Showgirl I to ask for any exterior video footage available from the time of the shooting. Detective McGillivray obtained footage that showed a black SUV enter the parking lot of Showgirl I at approximately 3:13 a.m. The vehicle looped around the lot and stayed in the parking lot for three to four minutes. There were several people in the parking lot as the club had just closed for the night. The SUV then left the club parking lot but parked in the parking lot of the adjoining hotel. Law enforcement officers were able to determine that the SUV was registered to Kayla Vachon, who was involved in a romantic relationship with Smith.

[7] During the afternoon on November 16, several detectives proceeded to Vachon's residence where they located the SUV shown in the video footage. A black male in the driver's seat of the SUV exited the vehicle and began to walk away from Vachon's residence. Detective McGillivray spoke to the driver, who was later identified as Smith. Tr. Vol. 2, p. 179.

[8] Law enforcement officers were able to obtain surveillance video footage to determine that Smith, Dillon Vachon (Kayla's brother), and William Tolbert entered Showgirl I at 1:54 a.m. on November 16. While he was in the club, Smith had a verbal confrontation with Issac Green. Smith returned to his friends and told them they needed to leave. The three men exited the club at 2:50 a.m., entered the SUV and drove away from the club. Officers used traffic camera footage to trace the path of the SUV as it left Showgirl I. Smith drove the SUV to his brother's home, picked his brother up, and returned to Showgirl I at 3:13 a.m. After the SUV came to a stop in the parking lot of the adjoining hotel, Smith ran over to the Showgirl I parking lot and ran back to the vehicle a few minutes later while carrying a long firearm. Id. at 215, 219. The law enforcement officer reviewing the footage identified the person carrying the firearm as Smith because of his clothing and his distinctive gait.

[9] Detectives recovered approximately twenty .22 caliber shell casings from the parking lot. The bullets recovered from Marialuz's body were all typical of bullets from a .22 caliber long rifle. Several of the bullets also struck the vehicle Marialuz had been sitting in just prior to the shooting. The entire rear of that vehicle was destroyed by bullets.

[10] Tolbert cooperated with law enforcement and gave a statement consistent with the video captured by the surveillance cameras. He stated that, when he, Smith, Dillon, and Smith's brother returned to Showgirl I, they parked the SUV at the adjoining hotel, and Smith exited the vehicle. Id. at 235. Smith told Tolbert to get into the driver's seat and Tolbert complied. He then watched Smith walk toward Showgirl I. Tolbert then heard gunshots and saw Smith running back to the SUV while carrying a firearm. Id. Smith jumped into the passenger seat, and Tolbert drove the SUV back to Vachon's home.

[11] The State charged Smith with murder, a firearm enhancement, and Level 6 felony criminal recklessness.¹ Smith's jury trial commenced on November 4, 2025. During trial, the trial court admitted Smith's statement to law enforcement officers into evidence. Ex. Vol., State's Ex. 162. Smith initially told the officers that he was not present at Showgirl I when the shooting occurred. After the officers confronted Smith with evidence that he was present during the shooting, Smith told the officers that a man named Sebastian was the shooter and the shooting occurred because of a drug deal. The clothes Smith claimed Sebastian was wearing matched Smith's own clothing seen on images from Showgirl I's surveillance footage. Smith claimed that, after the shooting, he drove Sebastian a short distance but then stopped and told Sebastian to get out of the car. Smith then changed his story again and told the officers that, before the shooting, Sebastian held Smith at gunpoint and forced Smith to give Sebastian his clothing.

[12] The jury found Smith guilty of murder and criminal recklessness and, in a bifurcated proceeding, found that he was eligible for the firearm enhancement. The trial court held Smith's sentencing hearing on December 11. Smith submitted numerous letters from friends and family vouching for his good character. The trial court did not find any mitigating circumstances but found Smith's criminal history and failed prior efforts at rehabilitation as aggravating circumstances. The court also considered that Smith “sprayed that parking lot with 20 to 25 shots” as an aggravator. Tr. Vol. 3, p. 209. The court then ordered Smith to serve sixty-five years for murder and imposed a twenty-year enhancement for the use of a firearm. In addition, the court ordered Smith to serve a consecutive two-year term for the criminal recklessness conviction. In the aggregate, the court imposed an eighty-seven-year sentence executed in the Department of Correction.

[13] Smith now appeals.

Smith's convictions are supported by sufficient evidence.

[14] Smith claims that the State failed to present sufficient evidence to prove that he was the person who murdered Marialuz and shot a gun at least twenty times in the Showgirl I parking lot. A challenge to the sufficiency of the evidence warrants a “deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (citation omitted). We consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024).

[15] Smith argues that there was no physical evidence or eyewitness testimony identifying him as the shooter. And he cites to Crance's statement to a police officer that the shooter was a Hispanic male named Jeff.

[16] The State presented evidence that, while Smith was inside Showgirl I, he had a verbal confrontation with another patron. He and his friends then immediately left the club, stopped to pick up Smith's brother, and returned to Showgirl I. Smith was driving the SUV when the group returned to Showgirl I, and he drove the vehicle around the parking lot several times before parking the SUV in the adjacent parking lot.

[17] Smith exited the SUV and walked toward Showgirl I's parking lot. Smith was wearing the same clothing that was shown on the Showgirl I surveillance footage from his earlier presence inside the club. Smith's friend, Tolbert, testified that he had heard multiple gunshots and then saw Smith running back to the SUV carrying a long rifle. The style of rifle shown on the surveillance videos and Tolbert's description of the rifle showed that Smith was likely in possession of a .22 caliber long rifle, which was consistent with the type of firearm used to shoot Marialuz. Tolbert believed that the rifle in Smith's possession that night belonged to Smith's brother. Tr. Vol. 2, p. 237.

[18] This evidence is compelling circumstantial evidence of Smith's guilt, and the State was not required to establish the identity of the shooter with eyewitness testimony. “A verdict may be sustained on circumstantial evidence alone if that evidence supports a reasonable inference of guilt.” Shields v. State, 248 N.E.3d 1246, 1271 (Ind. Ct. App. 2024), trans. denied. From this evidence, it was more than reasonable for the jury to find that Smith was the shooter.

[19] We conclude that the State presented sufficient evidence to convict Smith of murder and criminal recklessness.

The trial court did not abuse its discretion in sentencing Smith.

[20] Smith argues that the trial court abused its discretion when it considered his juvenile offense of truancy as an aggravating circumstance.² Sentencing decisions lie within the sound discretion of the trial court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted).

[21] A trial court abuses its discretion in sentencing if it does any of the following:

(1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any—but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.”

Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh'g on other grounds, 875 N.E.2d 218 (Ind. 2007)).

[22] Smith's presentence investigation report included information that, as a juvenile, he committed truancy, a status offense, and he was referred to the Status Offender Court Alternative Program. Appellant's App. p. 151. Smith argues that the trial court should not have considered his truancy offense because it was not an adjudication. See Barbee v. State, 269 N.E.3d 888, 896 (Ind. Ct. App. 2025) (observing that “a court may not consider a ‘[defendant's] juvenile contacts with the justice system not reduced to an adjudication as part of the criminal history aggravator of his sentence’ ”) (quoting Morrell v. State, 121 N.E.3d 577, 579 (Ind. Ct. App. 2019)), trans. denied.

[23] But we agree with the State that, when considered within the context of the trial court's sentencing statement, the court did not consider the truancy offense as an aggravating circumstance but instead for the proposition that Smith had previously been referred to a rehabilitation program that he failed to benefit from. See Appellee's Br. at 15-16; Tr. Vol. 3, p. 208. The trial court did not abuse its discretion when it considered Smith's “failed efforts at rehabilitation covering a period of time from 2015 to 2025” as an aggravating circumstance. Tr. Vol. 3, p. 208.

Smith's sentence is not inappropriate in light of the nature of his offenses and his character.

[24] Smith argues that his aggregate eighty-seven-year sentence is inappropriate because the circumstances of his offenses were not so heinous as to warrant a near maximum sentence and he presented substantial evidence of his good character. Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is “inappropriate in light of the nature of the offense and the character of the offender.” Making this determination “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[25] However, appellate revision of sentences under Rule 7(B) is reserved for “a rare and exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per curiam). Thus, when conducting this review, we will defer to the sentence imposed by the trial court unless the defendant demonstrates compelling evidence that portrays the nature of the offenses and his character in a positive light, such as showing a lack of brutality in the offenses or showing substantial virtuous character traits. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[26] Here, the trial court imposed the maximum sentence for murder, sixty-five years, and the maximum enhancement allowed for the use of a firearm, twenty years. See Ind. Code §§ 35-50-2-3; 35-50-2-11(g). The sentencing range for a Level 6 felony conviction is six-months to two and one-half years, and the advisory sentence is one year. Ind. Code § 35-50-2-7(b). The court ordered Smith to serve a consecutive two-year term for his Level 6 felony criminal recklessness conviction. Smith's aggregate eighty-seven-year sentence is six months less than the maximum sentence allowed.

[27] There is no evidence to support Smith's claim that his offenses were not heinous enough to support a near maximum sentence. After he was involved in a dispute with another patron of Showgirl I, Smith returned to the club armed with a .22 caliber rifle. He then fired at least twenty shots in the parking lot where several people were standing, demonstrating a complete disregard for the lives of the people in the parking lot. Tragically, Marialuz was struck by several bullets and killed. But, fortunately for Smith other persons in the parking lot escaped injury,³ including Marialuz's friend who was sitting in her vehicle that was struck by numerous bullets. There are no facts establishing that Smith showed any restraint, regard for human life, or lack of brutality while committing his offenses. See Stephenson, 29 N.E.3d at 122.

[28] At the sentencing hearing, Smith presented testimony and letters from friends and family vouching for his character and parenting. The trial court considered this evidence against Smith's criminal history. Although his criminal history consists solely of misdemeanors and Level 6 felonies, Smith was convicted of Level 6 domestic battery and misdemeanor domestic battery in 2017. His two-year sentence was suspended to probation, but his probation was revoked less than five months later. The court ordered Smith to serve his sentence in community corrections, and approximately four months later, the State filed a petition to revoke that placement.

[29] During the investigation of the instant offenses, Smith agreed to give a statement to the police, and he changed his statement multiple times after confronted with evidence of his involvement in the offenses. In addition, Smith's offenses reflect poorly on his character. After arguing with another club patron, Smith deliberately returned to Showgirl I, while armed with a rifle. He observed the number of people remaining in the parking lot after the club had closed but still opened fire on the parking lot. His disregard for human life reflects poorly on his character.

[30] The trial court considered the statements of Smith's friends and family but found the statements less than compelling when considered against Smith's conduct at Showgirl I, his criminal history, and his failed efforts at rehabilitation. Smith did not present any other evidence of virtuous character traits. Therefore, we will not conclude that Smith's sentence is inappropriate in light of his character.

[31] For all of these reasons, Smith has not met his burden of persuading our court that his aggregate eighty-seven-year sentence is inappropriate in light of the nature of his offenses and his character.

Conclusion

[32] The State presented sufficient evidence to prove that Smith committed murder and Level 6 felony criminal recklessness. The trial court did not abuse its discretion in imposing Smith's sentence, and Smith has not persuaded us that his eighty-seven-year aggregate sentence is inappropriate.

[33] Affirmed.

FOOTNOTES

1.   The State initially charged Smith with two counts of attempted murder, but those charges were dismissed prior to trial. Crance was not cooperative with law enforcement and the other victim died from circumstances unrelated to the Showgirl I shooting.

2.   The trial court found that Smith's criminal history included a prior commitment to the Department of Correction. Smith's presentence investigation report shows that he was convicted of two counts of domestic battery in 2017 and, after his probation was revoked, he was ordered to serve two years in the DOC. See Appellant's App. p. 151. The trial court's consideration of Smith's commitment to the DOC is therefore supported by the record, and Smith's claim that he had never served time in prison is simply an improper request to reweigh the evidence.

3.   The trial court dismissed the attempted murder charges at the State's request. The two individuals who were also shot that night were shot with a different type of firearm and they were found toward the rear of the club. The .9 millimeter firearm used to shoot the two men was found on the ground nearby. Although the State presented evidence that Smith could have shot those men as well, we will not consider their injuries in our consideration of Smith's sentence.

Mathias, Judge.

Kenworthy, J., and DeBoer, J., concur.