Amid the raft of charges facing 24-year-old Traneilous L. Neil Jackson and 23-year-old Dontay D. Martin are counts of criminal gang activity.
The two Fort Wayne men are each also charged with four counts of attempted murder, two counts of criminal recklessness, one count of carrying a handgun without a license with a prior conviction and one count of battery.
They were arrested after allegedly shooting up an ambulance carrying the victim of a stabbing inside a north-side nightclub earlier this month. Firing dozens of rounds from a pair of 9 mm handguns, Jackson and Martin are accused of wounding not only a paramedic in the ambulance, but two sisters of the stabbing victim who were following behind the ambulance in their own vehicle.
The charge of criminal gang activity, a Class D felony punishable by up to three years in prison, is rarely used by prosecutors. Not being used against Jackson or Martin and rarer still is the option to file whats known as a criminal gang enhancement, which can double a prison sentence.
Both charges, while useful weapons for prosecutors, are often hard to prove, experts say.
Written into state law in 1991, the offense of criminal gang activity can be charged against anyone who knowingly or intentionally actively participates in a criminal gang. Alongside that charge are statutes that prohibit threatening those who refuse to join or try to leave a criminal gang, as well as the crime of recruiting gang members, especially near a school or a child under 18. All these crimes are felonies.
Earlier this month, Marion County Prosecutor Terry R. Curry used the charge against a number of people affiliated with two gangs operating on Indianapolis south side – the Problem Child Gang and the Fountain Square Boyz.
Eight members of the Problem Child Gang were charged, as were six members of the Fountain Square Boyz, according to a release from the Marion County Prosecutors Office.
Curry used the charge alongside a number of more serious offenses such as battery and corrupt business influence.
Allen County Chief Deputy Prosecutor Michael McAlexander said the statute can be valuable.
But because it is often charged in connection with other crimes, there may not be a benefit to using the charge at sentencing because the prison time for each charge stemming from a single criminal act is often served at the same time, McAlexander said.
So when prosecutors have a chance to go for a more serious crime, they take it, McAlexander said.
Proving someone is in a gang, and that their behavior was in the furtherance of the gangs goals or business, can be difficult, he said.
When witnesses say a person is in a gang, that could be helpful from a police intelligence standpoint but does not necessarily help when it comes to charges, McAlexander said.
Prosecutors must separate the word on the street from evidence that can hold up in court as to whether the activity was gang-related, he said.
Prosecutors may also use the sentencing enhancement of criminal gang offense. A sentencing enhancement, just as it says, puts a greater weight on a specific crime by attaching a legal designation to the person committing it or to the way the crime was committed.
Indiana has a number of sentencing enhancements, such as being a habitual offender, use of a firearm in certain offenses, and murder or attempted murder causing the termination of a pregnancy.
Each of them has a different effect on prison sentences. The enhancement for terminating a pregnancy while committing a murder or attempted murder can add six to 20 years to the sentence.
The criminal gang offense enhancement adds the same amount of years as the underlying crime. So, if a gang member commits a murder and is sentenced to 50 years, and if a jury finds he was also committing a criminal gang offense, his sentence would be 100 years total.
The punishment is quite serious, said Ryan Scott, associate professor of law at Indiana Universitys Maurer School of Law. But it is procedurally complex to prove.
St. Joseph County Deputy Prosecutor Ken Cotter won a conviction using the enhancement earlier this summer against 23-year-old Kevin Burrell.
Burrell is currently serving a lengthy prison sentence at the Wabash Valley Correctional Facility on charges of attempted murder, criminal recklessness, burglary and attempted battery. According to the Indiana Department of Correction website, Burrells scheduled release date is 2064.
Along with members of his gang, identified by the South Bend Tribune as the Cash Out gang, Burrell crashed a party in South Bend and when asked to leave, came back angry and armed, Cotter said.
They were identifying themselves and saying you cant do this to us, Cotter said.
They knocked on the door and when it was opened, Burrell displayed a gun. When the door was shut, Burrell fired the gun through the door, knowing there was someone on the other side, Cotter said.
Cotter acknowledged the criminal gang offense enhancement is hard to prove because not only do you have to prove the crime, but also that it was committed to further the gangs agenda.
In the Burrell case, the defendant shouted out the name of the gang and that no one could do that to them, Cotter said.
Its difficult, but boy when you can prove that, and you have a violent gang, Cotter said, its pretty powerful. Its only been appealed one time and was upheld.
At this time, Allen County Prosecutor Karen Richards has not filed documents seeking criminal gang offense sentencing enhancement against either Jackson or Martin. McAlexander said the case remains under investigation and no decision has yet been made.