Tre M Zwieg v. State of Indiana
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case. FILED Apr 17 2024, 9:16 am CLERK Indiana Supreme Court Court of Appeals and Tax Court IN THE Court of Appeals of Indiana Tre M. Zwieg, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff April 17, 2024 Court of Appeals Case No. 23A-CR-1508 Appeal from the Allen Superior The Honorable Frances Gull, Judge Trial Court Cause No. 02D05-2112-MR-23 Memorandum Decision by Judge Pyle Chief Judge Altice and Judge Bradford concur. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 1 of 20 Pyle, Judge. Statement of the Case [1] Tre M. Zwieg (“Zwieg”) appeals, following a jury trial, his two convictions for murder1 as well as the sentence imposed thereon. He argues that: (1) the evidence is insufficient to support his convictions because the State failed to prove his identity beyond a reasonable doubt; and (2) his sentence is inappropriate.2 Issues 1. Whether there is sufficient evidence to support Zwieg’s murder convictions. 2. Whether Zwieg’s sentence is inappropriate. Facts [2] The facts most favorable to the verdicts reveal that nineteen-year-old Zwieg and Kaydence Beachy (“Beachy”) began dating in 2021. In March 2021, Jason Daltoso (“Daltoso”), who had met Zwieg in an online gaming room, moved from Seattle to Fort Wayne and rented an apartment on Ridgewood Drive (“the Ridgewood Apartment”). In May 2021, Zwieg and Beachy moved in with 1 IND. CODE § 35-42-1-1. 2 We held an oral argument in this appeal at Arsenal Technical High School on April 4, 2024. We thank all counsel for their able advocacy. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 2 of 20 Daltoso. Zwieg and Beachy also worked at the same restaurant (“the restaurant”). [3] In August 2021, Beachy reconnected on social media with nineteen-year-old Brendan Cole (“Cole”). Beachy and Cole had attended high school together. Beachy introduced Zwieg and Cole, and Cole began spending time, including several nights a week, at the Ridgewood Apartment. Cole also began working with Zwieg and Beachy at the restaurant. [4] In October 2021, Beachy and Zwieg ended their relationship, and Beachy moved out of the Ridgewood Apartment. Thereafter, Cole’s sixteen-year-old cousin, Juan Ramirez (“Ramirez”) began spending time, including several nights a week, at the Ridgewood Apartment. [5] In October and November 2021, there were three handguns and a rifle at the Ridgewood Apartment. Zwieg liked to use his cell phone to take pictures and videos of himself holding the firearms. [6] One evening in November 2021, while Zwieg, Beachy, and Cole were working together at the restaurant, Beachy overheard Zwieg and Cole talking about what they believed was an abandoned house on Cumberland Avenue (“the Cumberland House”), which was located about 270 yards from the Ridgewood Apartment. Beachy specifically overheard Zwieg and Cole discussing taking some chains from the garage at the Cumberland House (“the Cumberland Garage). Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 3 of 20 [7] At the end of November 2021, Zwieg told Beachy that he did not feel safe at the Ridgewood Apartment and wanted to move. On November 30, 2021, Zwieg typed the following note on his cell phone: He threatened my little brothers an[d] my family, he planned on killing me an[d] I don’t know if that’s changed[.] He wanted to take all our cuts an[d] dip[.] I jus[t] honestly don’t trust him[.] [H]e is plotting on my family and my life behind my back[.] That sh**s not cool, I got the plan. (Ex. Vol. 1 at 248). [8] On Thursday, December 2, 2021, Daltoso planned to drive to Indianapolis to pick up two friends who were visiting him from Oregon. Daltoso had asked Zwieg to leave the Ridgewood Apartment for a few days so that there would be enough space for his friends to stay there. When Zwieg and Daltoso left the Ridgewood Apartment at 5:00 that afternoon, Cole and Ramirez were in the living room. Daltoso dropped Zwieg off at the restaurant before driving to Indianapolis. On his way to the airport, Daltoso had a flat tire. Because Daltoso was late arriving at the airport, he and his friends spent the night in Indianapolis. [9] That same night, Zwieg and Beachy finished their shifts at the restaurant at approximately 9:30 p.m. Zwieg asked Beachy to take him to his mother’s house where he was planning to stay while Daltoso’s friends were visiting. Zwieg and Beachy arrived at Zwieg’s mother’s house at approximately 9:45 p.m. As Beachy began to drive away from the house, Zwieg came back outside and asked her to take him back to the Ridgewood Apartment so that he could Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 4 of 20 get some clothes. Beachy noticed that Zwieg did not have his cell phone with him, and she thought that was unusual. Zwieg told Beachy that he had left his cell phone at his mother’s house to charge it. Beachy “found that a little odd because [she] had a charger in [her] car.” (Tr. Vol. 3 at 33). [10] Beachy dropped Zwieg off at the Ridgewood Apartment at approximately 10:15 p.m. At that time, Cole was at the Ridgewood Apartment talking to a friend on his cell phone. After Beachy had dropped off Zwieg, she picked up a friend who lived nearby in the same apartment complex. Beachy and her friend drove around for twenty to thirty minutes before Beachy took the friend back to the apartment complex. After Beachy’s friend had gotten out of the car, Beachy waited in the car for a few minutes because she thought her friend was planning to come back to the car. At approximately 10:35 to 10:45 p.m., while waiting for her friend, Beachy heard a gunshot. At 10:45 p.m., Chelsea York (“York”), who lived approximately 100 yards south of the Cumberland House, heard multiple gunshots, a pause, and then more gunshots. York called 911. [11] A few minutes after Beachy had heard the gunshots, she saw a hooded figure running in the direction of the Ridgewood Apartment. Beachy noticed that the hooded figure was about Zwieg’s height and build and was wearing clothes similar to “something that [Zwieg] had worn.” (Tr. Vol. 3 at 36). Beachy also noticed that the hooded figure was wearing a ski mask. [12] Kerry White (“White”), who lived at the Cumberland House, returned home from work in the early morning hours of December 3, 2021. As White Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 5 of 20 approached the house, she noticed that the door to the breezeway was open and that the light in the Cumberland Garage was on, which was “not normal.” (Tr. Vol. 2 at 181). White walked into the Cumberland Garage expecting to find that some of her property had been stolen. However, when she looked into the Cumberland Garage, she saw a person wearing a ski mask lying motionless on the floor near the door. White immediately called 911. [13] Fort Wayne Police Department Officer Joshua Franciscy (“Officer Franciscy”) was dispatched to the scene and discovered Cole and Ramirez lying dead on the garage floor. Fort Wayne Police Department crime scene technicians were dispatched to the scene and used swabs to collect DNA from areas in the Cumberland Garage. The technicians focused on collecting swabs from the door knobs and the light switches, which were the most likely items to have been touched. Subsequent DNA testing revealed that Ramirez’s DNA was on one of the door knobs. Zwieg’s DNA was not found in the Cumberland Garage. [14] In addition to collecting DNA swabs, the crime scene technicians collected twenty shell casings. A forensic firearms examiner determined that the shell casings had been fired from three different firearms. Specifically, six shell casings had been fired from one firearm, six shell casings had been fired from another firearm, and eight shell casings (“the eight shell casings”) had been fired from a third firearm. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 6 of 20 [15] An autopsy revealed that nineteen-year-old Cole had been shot three times, including two shots in the back and one shot in the back of the head. His cause of death was multiple gunshot wounds, and the manner of death was homicide. In addition, an autopsy revealed that sixteen-year-old Ramirez had been shot sixteen times, including two shots in the back of his head. His cause of death was also multiple gunshot wounds, and the manner of death was also homicide. [16] On Saturday, December 4, 2021, Zwieg’s mother contacted Beachy and asked Beachy to come over to her house to pick up a necklace. That same day, Beachy went to Zwieg’s mother’s house. When Beachy went into the house, Zwieg asked her to go into the bathroom with him so that they could talk. While in the bathroom, Zwieg told Beachy that “things . . . had gotten messed up on Thursday, and that he was going to need [her] to be his alibi.” (Tr. Vol. 3 at 37). Zwieg specifically told Beachy that “he wanted [her] to cover for him” between 10:45 and 10:55 on Thursday night. (Tr. Vol. 3 at 38). When Beachy told Zwieg that she was not willing to do that, Zwieg told Beachy that if she loved him, she would provide him with an alibi. After speaking with her mother and a family friend, Beachy contacted law enforcement and told an officer that Zwieg had asked her to provide him with a false alibi. [17] On December 13, 2021, the State charged Zwieg with two counts of murder, two counts of felony murder, and one count of Level 1 felony burglary. The State also charged Zwieg with an enhancement for the use of a firearm during the murders. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 7 of 20 [18] In May 2022, Stephen Meyer (“Meyer”) was magnet fishing in the St. Joseph River when he pulled up a nine-millimeter Sig Sauer P365 handgun with a laser sight (“the Sig Sauer”).3 Meyer, who could tell that the Sig Sauer had not been in the water for a long time, took it home and cleaned it enough to be able to read the serial number. Meyer then showed the Sig Sauer to his neighbor, who worked for the sheriff’s department. Meyer’s neighbor called his dispatch and asked the dispatcher to run the gun’s serial number. After learning that the gun had been stolen, Meyer’s neighbor contacted the Fort Wayne Police Department, and a police officer picked up the Sig Sauer at Meyer’s home. Forensic testing revealed that the Sig Sauer, which had been stolen from a car in October 2021, had been used to fire the eight shell casings that had been found in the Cumberland Garage. [19] Fort Wayne Police Department Homicide Detective Lucas MacDonald (“Detective MacDonald”), who was the lead investigator on the case, examined the Sig Sauer and compared it to photographs of the guns that Zwieg had taken on his cell phone. Detective MacDonald noticed that the Sig Sauer and one of the handguns in Zwieg’s photographs, which was also a Sig Sauer, had similar distinct scratch marks. [20] Also, in May 2022, David Houlton (“Houlton”), who was incarcerated in the Allen County Jail with Zwieg, contacted the Fort Wayne Police Department 3 Meyer explained that “[m]agnet fishing is a very powerful magnet that you throw out and cross your fingers, pull metal objects out of the water.” (Tr. Vol. 3 at 234). Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 8 of 20 with information about a double homicide. Houlton subsequently told a police officer that Zwieg had told him that Zwieg had had some business dealings with his roommate and his roommate’s cousin. However, the roommate and his cousin had believed that Zwieg had “shortchanged [them] somewhere down the line[]” and had threatened to harm Zwieg’s younger brother. (Tr. Vol. 4 at 8). According to Houlton, Zwieg had further told him that: Basically, he had them meet him at a house by his apartment, in the garage of some lady’s house, and when they got there, he shot the first one nine times and then shot the other one, emptied out the gun, and reloaded it, and shot him again. Then left the light on in the garage and then ran back to his apartment to his girlfriend. (Tr. Vol. 4 at 9). Houlton further told the officer that Zwieg had told him that he had left his cell phone at home “just so it wouldn’t tie him to the scene[]” and that he had used multiple guns. (Tr. Vol. 4 at 10). In addition, Houlton told the officer that Zwieg had told him that his girlfriend “was the one who initially told on him and said what happened and who it was.” (Tr. Vol. 4 at 11). The police had not released to the public the specific details of the murder events that Houlton had included in his statement. Houlton also told the officer that he had “wrestled with [reaching out to law enforcement] because nobody wants to be a snitch.” (Tr. Vol. 4 at 12). However, Houlton explained to the officer that he had been bothered because Zwieg had not seemed to feel bad about what he had done. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 9 of 20 [21] The jury heard the facts as set forth above at Zwieg’s four-day jury trial in May 2023. In addition, during Detective MacDonald’s testimony, the trial court admitted into evidence a photograph of the handgun that Meyer had found while he was magnet fishing and a photograph from Zwieg’s cell phone that showed him holding a Sig Sauer. The photographs showed that the two Sig Sauers had similar scratch marks. Further, the State asked Detective MacDonald, “what is your experience about how consistent people can give gunshot numbers when they’ve been in the same location?” (Tr. Vol. 4 at 142). Detective MacDonald responded as follows: It’s very inconsistent, and I’d even say, even with officers, we’ve been in times where we might be out on foot in the park, and we hear, you know, I remember I was out on another call, and shots went off[.] And I remember even the officer standing next to me, we heard a dif- I was like, we heard different numbers. I mean, you just, your brain might be thinking about something else, or it might startle you or surprise you, or just people react different. And maybe once they hear a first few, that’s all they need to hear. It’s just, it’s very inconsistent on the exact numbers. (Tr. Vol. 4 at 142-43). [22] In addition, during closing argument, the State argued as follows: [Zwieg]’s DNA is not at the scene, but let’s talk about that for just a second[.] [Ramirez]’s DNA I think was on one of the door handles. We got lucky there. But if [Zwieg]’s not one of the ones that’s opening the door, he’s not touching much inside that [garage]. If he’s following along behind the two guys, which we know he was because he shot them in the back, he’s not touching anything. All he has to do is stand there and squeeze the trigger. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 10 of 20 So, the fact that his DNA is not at the crime scene is not surprising. (Tr. Vol. 4 at 217-18). [23] The jury convicted Zwieg of all counts and, in a separate proceeding, determined that the State had proved beyond a reasonable doubt that he had used a firearm during the commission of the murders. [24] At Zwieg’s June 2023 sentencing hearing, the trial court reviewed Zwieg’s presentence investigation report (“the PSI”). The PSI revealed that Zwieg had been placed on two informal adjustments when he was a juvenile. Specifically, he was placed on an informal adjustment in June 2019 for what would have been Class B misdemeanor disorderly conduct if committed by an adult. The terms of the informal adjustment included six months of administrative supervision, completion of an anger management counseling program, and no contact with D.K. In September 2019, Zwieg was unsatisfactorily discharged from the informal adjustment. Also, in September 2019, Zwieg was placed on an informal adjustment for what would have been Class A misdemeanor invasion of privacy for violating a protective order if committed by an adult. The terms of this informal adjustment included administrative supervision, individual counseling, and no contact with D.K. Zwieg was satisfactorily discharged from the informal adjustment in March 2020. According to the PSI, Zwieg had no adult criminal history. [25] The PSI further revealed that Zwieg had been diagnosed with a major depressive disorder and anxiety in 2019. He attended counseling until 2020, Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 11 of 20 when he began “‘working too much’ to be able to attend the sessions.” (App. Vol. 2 at 150). The PSI also revealed that Zwieg began drinking alcohol when he was seventeen years old and that he drank alcohol occasionally until he was nineteen years old. In addition, according to the PSI, Zwieg began using marijuana daily when he was eighteen years old and had experimented with acid one time and mushrooms one time when he was nineteen years old. [26] At the end of the sentencing hearing, the trial court entered judgment of conviction on the two murder convictions, vacated the felony murder and Level 1 felony burglary convictions because of double jeopardy concerns, and accepted the jury’s firearm enhancement determination. In addition, the trial court found the following aggravating factors: (1) Zwieg’s juvenile record, which included two informal adjustments with administrative supervision and failed efforts at rehabilitation; (2) Zwieg’s position of trust with the victims; (3) the fact that there were multiple victims; and (4) the extraordinary impact of Zwieg’s conduct on the victims’ families.4 The trial court further found Zwieg’s age and lack of adult criminal history to be mitigating factors. 5 Thereafter, the 4 The trial court specifically stated that the extraordinary impact of Zwieg’s conduct on the victims’ families was “palpable in the courtroom during the course of [his] trial where on many occasions folks in the courtroom had to leave as they were overcome with emotion, and it’s clear in court today that they remain overcome with emotion.” (Tr. Vol. 5 at 21). 5 Zwieg had also proposed to the trial court the following mitigating factors: (1) his mental health issues; (2) his substance abuse history; (3) the victims had provoked him by threatening to harm his younger brothers; and (4) the hardship to his dependent child. However, the trial court declined to find Zwieg’s mental health issues and substance abuse as mitigating factors because there was “no nexus to the charge[d] and convicted crimes.” (Tr. Vol. 5 at 20). The trial court also declined to find Zwieg’s additional proposed mitigating factors. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 12 of 20 trial court sentenced Zwieg to sixty (60) years for one of the murder convictions, enhanced by twenty (20) years for the use of a firearm during the commission of the offense, and to sixty (60) years for the other murder conviction. The trial court further ordered the sentences to run consecutively to each other because “to run sentences concurrent ignores the fact that there [were] two victims at [Zwieg’s] hand.” (Tr. Vol. 5 at 21). In addition, the trial court ordered Zwieg to serve his 140-year aggregate sentence in the Department of Correction. [27] Zwieg now appeals his convictions and sentence. Decision [28] Zwieg argues that: (1) there is insufficient evidence to support his convictions; and (2) his sentence is inappropriate. We address each of his contentions in turn. 1. Sufficiency of the Evidence [29] Zwieg first argues that there is insufficient evidence to support his murder convictions. Our standard of review for sufficiency of the evidence claims is well settled. We consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or judge witness credibility. Id. We will affirm the conviction unless no reasonable fact finder could find the elements of the crime proven beyond a reasonable doubt. Id. The evidence is Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 13 of 20 sufficient if an inference may be reasonably drawn from it to support the verdict. Id. at 147. [30] To convict Zwieg of two counts of murder, the State was required to prove beyond a reasonable doubt that Zwieg knowingly or intentionally killed both Cole and Ramirez. See I.C. § 35-42-1-1. Zwieg specifically argues that there is insufficient evidence to support his murder convictions because the State failed to prove his identity beyond a reasonable doubt. According to Zwieg, because he “was eliminated as a contributor to all the DNA samples taken from the crime scene[]” and because “[t]he evidence was internally inconsistent about the number of shots fired[,]” the State failed to present sufficient evidence to support his convictions. (Zwieg’s Br. 5). [31] Regarding Zwieg’s argument that the State failed to prove his identity beyond a reasonable doubt because his DNA was not found in the Cumberland Garage, we note that, during closing arguments, the State argued that it was not surprising that Zwieg’s DNA had not been found at the crime scene. Specifically, the State argued that Zwieg had not touched anything in the Cumberland Garage because he had simply followed Cole and Ramirez into the garage before shooting them both in the back. Further, regarding his argument that the State failed to prove his identity beyond a reasonable doubt because the witnesses’ testimony about the number of shots fired was not consistent, we note that Detective MacDonald testified that, in his experience, it was not unusual for different people at the same location to hear an inconsistent number of gunshots. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 14 of 20 [32] We further note that our review of the evidence reveals that on December 2, 2021, after Zwieg and Beachy had finished their restaurant shifts, Zwieg asked Beachy to take him to his mother’s house, where he planned to spend the night. However, as Beachy began to drive away from the house at approximately 9:45 p.m., Zwieg came back outside and asked her to take him to the Ridgewood Apartment so that he could get some clothes. Beachy thought it was odd that Zwieg had left his cell phone in his mother’s house to charge it when she had a charger in the car. [33] At approximately 10:15 p.m., Beachy dropped Zwieg off at the Ridgewood Apartment. Cole was at the apartment talking to a friend on his cell phone. Approximately thirty minutes later, Beachy, who was sitting in the Ridgewood Apartment’s parking lot, heard a gunshot. York, who lived near the Cumberland Garage, heard multiple gunshots, a pause, and then more gunshots. Shortly thereafter, Beachy saw a hooded figure running in the direction of the Ridgewood Apartment. The hooded figure, who was wearing a ski mask, was about Zwieg’s height and build and was wearing clothes similar to something that Zwieg had worn. [34] When White returned home from work in the early morning hours of December 3, 2021, she noticed that the light was on in the Cumberland Garage. When she walked into the garage, she discovered Cole and Ramirez lying dead on her garage floor. Both young men, who were wearing ski masks, had been shot multiple times. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 15 of 20 [35] Zwieg subsequently asked Beachy to give him a false alibi to cover the time between 10:45 and 10:55 the night that Cole and Ramirez had been shot. Beachy contacted law enforcement and told an officer that Zwieg had asked her to provide him with a false alibi for the night of the shootings. [36] Crime scene technicians collected, in the Cumberland Garage, twenty shell casings that had been fired from three separate firearms. The Sig Sauer that had fired eight of the shell casings had distinct scratch marks. Detective MacDonald noticed that Zwieg had used his cell phone to take photographs and videos of himself holding firearms. Detective MacDonald further noticed that Zwieg was holding a Sig Sauer in one of those photographs and that the Sig Sauer had distinct scratch marks that were similar to the distinct scratch marks on the Sig Sauer that had fired the eight shell casings. [37] Further, while Zwieg was incarcerated in the Allen County Jail following his arrest, Zwieg told another inmate, Houlton, that Zwieg’s roommate and his roommate’s cousin had threatened to harm Zwieg’s younger brother. Zwieg also told Houlton that he and the two young men had gone to a garage near the Ridgewood Apartment, and when they had gotten there, Zwieg had fired multiple shots at each of the young men. Zwieg further told Houlton that he had left the light on in the garage and had run back to his apartment. Zwieg also told Houlton that he had left his cell phone at home and that he had used multiple weapons. In addition, Zwieg told Houlton that his girlfriend was the one who had initially contacted the police regarding the shootings. Many of the details that Zwieg had told Houlton had not been released to the public. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 16 of 20 [38] Based on this evidence, a reasonable jury could have found that the State proved Zwieg’s identity beyond a reasonable doubt. The evidence is, therefore, sufficient to support Zwieg’s murder convictions. 2. Sentence [39] Zwieg also argues that his 140-year sentence, which includes a sixty-year sentence for one of the murder convictions, enhanced by twenty years for the use of a firearm during the commission of the offense, and another sixty-year sentence for the other murder conviction, is inappropriate.6 Zwieg specifically argues that his sentence is inappropriate because he “was 19 years old at the time of this offense. He had no adult criminal convictions, and [he had] a history of mental health conditions and substance abuse.” (Zwieg’s Br. 5). [40] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The defendant bears the burden of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on the “culpability of the defendant, the severity of the crime, the damage done to others, and 6 Zwieg’s sole challenge to his sentence is that it is inappropriate. Zwieg does not argue that the trial court abused its discretion when it sentenced him. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 17 of 20 myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). [41] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence is the starting point the Legislature has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. Here, Zwieg was convicted of two counts of murder and was found to have knowingly or intentionally used a firearm during the commission of the offenses. The sentencing range for murder is from forty-five (45) to sixty-five (65) years, with an advisory sentence of fifty-five (55) years. I.C. § 35-50-2-3. In addition, if a person knowingly or intentionally uses a firearm during the commission of certain offenses, including murder, the trial court may impose an additional fixed term of imprisonment between five (5) and twenty (20) years. I.C. § 35-50-2-11. Here, the trial court imposed a sixty (60) year sentence for each of the two murder convictions and enhanced one of the sixtyyear sentences by twenty (20) years for his use of a firearm, resulting in an aggregate sentence of 140 years. This sentence is ten years less than the 150year potential maximum sentence. [42] Regarding the nature of the offenses, we note that Zwieg allowed his roommate and his roommate’s cousin to believe that they were going to the Cumberland Garage to steal some items. However, when the three young men arrived at the garage, Zwieg brutally executed nineteen-year-old Cole and sixteen-year-old Ramirez. Specifically, Zwieg shot Cole three times, twice in the back and once in the back of the head. In addition, Zwieg shot Ramirez sixteen times, Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 18 of 20 including twice in the back of the head. In the well-planned executions, Zwieg used three different firearms and left his cell phone at home so that he would not be connected to the Cumberland Garage. We emphasize that there were two separate victims in this case, and we agree with the trial court that the multiple-victim aspect of this case justified consecutive sentences. See Gleaves v. State, 859 N.E.2d 766, 772 (Ind. Ct. App. 2007). [43] Regarding the character of the offender, we note that following the two executions, Zwieg attempted to convince Beachy to lie about his whereabouts at the time of the shootings and subsequently bragged about the executions to Houlton another inmate at the Allen County Jail. Houlton had been bothered that Zwieg had not seemed to feel bad about what he had done. We further note that Zwieg has a juvenile record that includes two informal adjustments with administrative supervision and failed efforts at rehabilitation. [44] Based on the nature of the offenses and his character, Zwieg has failed to persuade this Court that his aggregate 140-year sentence is inappropriate. [45] Affirmed. Altice, C.J., and Bradford, J., concur. Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 19 of 20 ATTORNEYS FOR APPELLANT James H. Voyles, Jr. Jennifer M. Lukemeyer Tyler D. Helmond Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana Court of Appeals of Indiana | Memorandum Decision 23A-CR-1508 | April 17, 2024 Page 20 of 20
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