Alain Kiiwon Powell, Jr. v. State of Indiana , 127 N.E.3d 1280 ( 2019 )

FILED
Jun 28 2019, 10:05 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Curtis T. Hill, Jr.
Graham Law Firm P.C. Attorney General of Indiana
Lafayette, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alain Kiiwon Powell, Jr., June 28, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1812
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Sean M. Persin,
Appellee-Plaintiff Judge
Trial Court Cause No.
79C01-1703-F1-4
May, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 1 of 11
[1] Alain Kiiwon Powell Jr. appeals his conviction of Level 1 felony attempted
murder 1 for the shooting of Davyn Nichols. He presents three issues for our
review, which we restate as:
1. Whether the State presented sufficient evidence Powell
committed Level 1 felony attempted murder for the shooting of
Davyn Nichols;
2. Whether the trial court abused its discretion when it gave a
modified version of the State’s proffered jury instruction
regarding transferred intent; and
3. Whether Powell’s two convictions of Level 1 felony attempted
murder violated double jeopardy.
We affirm in part, reverse in part, and remand.
Facts and Procedural History
[2] In March 2017, Travis Nichols purchased a Ford Taurus from Tyler Howard.
Shortly thereafter, Howard asked to borrow the vehicle, and he did not return
it. On March 20, 2017, Travis, Davyn Nichols, and Troy Clements drove in a
black Cadillac to the house where they believed the Taurus was parked. Travis
was driving, Davyn was in the passenger seat, and Clements was in the back
seat of the black Cadillac.
1
Ind. Code § 35-42-1-1 (murder); Ind. Code § 35-41-5-1 (attempt).
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[3] Around the same time Powell, Brittany Warren, and a third unidentified person
were in an orange Cadillac. Warren received a call from Howard, who told her
that Travis was in a black Cadillac in front of Howard’s house. Howard
indicated he suspected Travis was there to take back the Taurus and there might
be a physical altercation.
[4] Powell drove the orange Cadillac to Howard’s house and saw the black
Cadillac with Travis in the driver’s seat. Powell pulled up to the black Cadillac
so that the driver’s side of the orange Cadillac was next to the passenger side of
the black Cadillac. Powell rolled down the window and asked if Travis “got a
problem with” Howard, whom Powell referred to as his “brother.” (Tr. Vol. II
at 86-7.) Powell and Travis then began to argue.
[5] Davyn saw Powell holding a gun and told Travis that Powell had a gun. Travis
said to Powell, “why you bring a gun to a fight for you know I aint got no gun.”
(Id. at 126) (errors in original). Travis started to pull away from Powell, and
Powell fired five to six shots at Travis’ vehicle. Two of the shots hit Davyn,
who suffered multiple injuries and would have died without medical attention.
[6] Police later apprehended Powell at his father’s apartment. On March 24, 2017,
the State charged Powell with three counts of Level 1 felony attempted murder
for the attempted murders of Clements, Travis, and Davyn; Level 3 felony
aggravated battery of Davyn; 2 Level 5 felony battery of Davyn by means of a
2
Ind. Code § 35-42-2-1.5.
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deadly weapon; 3 Level 5 felony battery of Davyn resulting in bodily injury; 4
Level 5 felony criminal recklessness for firing the gun; 5 and Class A
misdemeanor carrying a handgun without a license. 6 The State subsequently
filed an information alleging Powell’s sentence could be enhanced because he
used a firearm to commit these crimes. 7 In addition, the State filed a charging
information alleging Powell committed Level 5 felony carrying a handgun
without a license with a prior felony conviction. 8
[7] After a four-day trial, the jury returned a not guilty verdict on the attempted
murder charge for Clements and guilty verdicts on all other charges. The jury
was dismissed, and then the trial court found Powell was eligible for the firearm
enhancement. On July 9, 2018, the trial court entered convictions for two
counts of attempted murder and one count of carrying a handgun without a
license. The trial court sentenced Powell to thirty-two years for each attempted
murder conviction, to be served consecutive to each other but concurrent with
five years for Level 5 felony carrying a handgun without a license with a prior
3
Ind. Code § 35-42-2-1(g)(2).
4
Ind. Code § 3542-2-1(g)(1).
5
Ind. Code § 35-42-2-2(b)(2).
6
Ind. Code § 35-47-2-1.
7
Ind. Code § 35-50-2-11.
8
Ind. Code § 35-47-2-1(e)(2)(B).
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felony conviction. Thus, the court imposed an aggregate sentence of sixty-four
years.
Discussion and Decision
Sufficiency of the Evidence
[8] When reviewing sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
fact-finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the
fact-finder’s role, and not ours, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Id. To
preserve this structure, when we are confronted with conflicting evidence, we
consider it most favorably to the ruling. Id. We affirm a conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id. It is therefore not necessary that the evidence overcome
every reasonable hypothesis of innocence; rather, the evidence is sufficient if an
inference reasonably may be drawn from it to support the decision. Id. at 147.
[9] Powell argues the State did not present sufficient evidence to support his
conviction of Level 1 felony attempted murder of Davyn. Powell concedes the
evidence supports his conviction for the attempted murder of Travis because
Powell drove up to Travis’ vehicle and spoke directly to Travis. However,
Powell contends the State did not prove he possessed the requisite intent to kill
Davyn, despite the fact she was the person injured in the shooting. We
disagree.
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[10] Murder is defined as “knowingly or intentionally kill[ing] another human
being,” Ind. Code § 35-42-1-1(1) (2017), and attempt is defined as acting with
the culpability required for a crime while taking a substantial step toward
committing that crime. Ind. Code § 35-41-5-1 (2014) (elements of attempt).
However, our Indiana Supreme Court has held that, for a person to be
convicted of attempted murder, “the State must prove beyond a reasonable
doubt that the defendant [acted] with intent to kill the victim.” Sprandlin v.
State, 569 N.E.2d 948, 950 (Ind. 1991).
[11] In Corbin v. State, 840 N.E.2d 424 (Ind. Ct. App. 2006), we summarized existing
precedent regarding the State’s burden in presenting evidence of intent in an
attempted murder case:
Intent to kill may be inferred from the use of a deadly weapon in
a manner likely to cause death or great bodily injury, in addition
to the nature of the attack and circumstances surrounding the
crime. Gall v. State, 811 N.E.2d 969, 975 (Ind. Ct. App. 2004). . .
. Further, our supreme court held that discharging a weapon in
the direction of a victim is substantial evidence from which the
jury could infer intent to kill. Leon v. State, 525 N.E.2d 331, 332
(Ind. 1988).
Id. at 429.
[12] Here, Powell confronted Travis after Howard called Powell and indicated
Travis may instigate a physical confrontation over the Ford Taurus. Powell
and Travis traded words regarding Howard, and Travis testified he was “being
another smart butt.” (Tr. Vol. II at 126.) While Powell and Travis were
Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 6 of 11
speaking to each other, Davyn commented that Powell was loading a gun.
Powell’s vehicle was situated on Davyn’s side of Travis’ vehicle, as Powell’s
driver side was adjacent to the passenger side of Travis’ vehicle. Powell then
aimed at Travis’ vehicle and fired five to six shots as Travis drove away. Based
on the ongoing animosity between the parties, Powell’s use of a deadly weapon,
and the act of firing multiple shots on the side where Davyn was sitting, we
conclude the State presented sufficient evidence Powell had intent to kill Davyn
and thus committed Level 1 felony attempted murder against Davyn. See Perez
v. State, 872 N.E.2d 208, 214 (Ind. Ct. App. 2007) (ongoing hostilities between
parties and use of a deadly weapon sufficient to prove Perez committed
attempted murder when he fired shots at a car containing rival gang members),
trans. denied.
Jury Instruction Regarding Transferred Intent
[13] To preserve a claim of error in the giving of a jury instruction, trial counsel
must timely object and clearly identify the “claimed objectionable matter and
the grounds for the objection.” Scisney v. State, 701 N.E.2d 847, 849 (Ind.
1998). Here, the State proffered an instruction that stated:
Under the doctrine of transferred intent, the intent to harm one
person may be treated as the intent to harm a different person
when, through mistake or inadvertence, violence directed
towards one person results in injury to a different person.
In a situation where there is an intent to kill one person, but a
different person suffers the injury and dies, the intent to kill the
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first person may serve as proof of the intent to kill the actual
victim.
This doctrine may be applied to the intent necessary for
attempted murder.
(App. Vol. II at 198.) Powell objected, arguing,
I don’t have a problem with the first paragraph for transfer and
intent but the second paragraph when it starts to talk in a
situation and this was their proposed instruction a situation
where there is an intent to kill a person but a different person
suffers injuries and dies, my argument Judge on this is these are
facts that are not in evidence and facts and instructions that point
to anything must be in the evidence and there is a case that states
that using an instruction that assumes facts that are not in
evidence is fundamental error and I would say that none of those
fact, no one died those facts are not in evidence[.]
(Tr. Vol. III at 165) (errors in original). After discussion between the parties
and the trial court, Powell agreed to use of the instruction as modified, which
stated, “Under the doctrine of transferred intent, the intent to harm one person
may be treated as the intent to harm a different person when, through mistake
or inadvertence, violence directed towards one person results in injury to a
different person.” (App. Vol. II at 198.)
[14] On appeal, Powell argues the instruction regarding transferred intent, to which
he assented to upon modification, is an incorrect statement of law. However,
Powell invited the error of which he now complains by agreeing to use a
modified version of the transferred intent instruction. See Wright v. State, 828
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N.E.2d 904, 907 (Ind. 2005) (under the invited error doctrine, “a party may not
take advantage of an error that she commits, invites, or which is the natural
consequence of her own neglect or misconduct”). “Invited errors are not
subject to appellate review, and a party therefore may not invite error, and then
subsequently argue that the error requires reversal.” Oldham v. State, 779
N.E.2d 1162, 1171 (Ind. Ct. App. 2002), trans. denied. As Powell assented to
the use of a transferred intent instruction, he cannot now complain the
instruction was an incorrect statement of the law. See Gamble v. State, 831
N.E.2d 178, 187 (Ind. Ct. App. 2005) (“[e]rror invited by the complaining party
is not reversible error”), trans. denied.
Double Jeopardy
Article 1, Section 14 of the Indiana Constitution provides that “no person shall
be put in jeopardy twice for the same offense.” Two or more offenses are the
same if, “with respect to either the statutory elements of the challenged crimes
or the actual evidence used to convict, the essential elements of one challenged
offense also establish the essential elements of another challenged offense.”
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). 9 Powell argues his
convictions of Level 1 felony attempted murder violate double jeopardy because
the evidence presented was identical for each count. We agree.
9
The holding in Richardson was modified by Garrett v. State, 992 N.E.2d 710 (Ind. 2013). However, Garrett
further clarified the holding in Richardson as it applied to retrial after an acquittal, which is not at issue in this
case. Id. at 723.
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[15] Here, the State presented evidence Powell shot at Travis’ car five times,
ultimately injuring Davyn. As we noted supra, there was no additional
evidence that Powell intended to kill a specific victim or took additional steps to
kill a specific victim. Thus, it is possible that some or all of the evidence used to
prove Powell’s attempted murder of Travis could also be used to prove Powell’s
attempted murder of Davyn, and we conclude Powell’s two convictions of
Level 1 felony attempted murder violate his right against double jeopardy. See
Curry v. State, 740 N.E.2d 162, 166-7 (Ind. Ct. App. 2000) (holding violation of
double jeopardy based on actual evidence test in an incident involving a “single
incident of brutality”), trans. denied.
[16] Accordingly, we vacate the Level 1 felony conviction involving Davyn. Here
the trial court merged Powell’s guilty verdict of Level 3 felony aggravated
battery into the Level 1 felony attempted murder conviction as it related to
Davyn. As we have reversed that attempted murder conviction, it is therefore
appropriate for the trial court to reinstate the Level 3 felony aggravated battery
conviction and sentence Powell accordingly. See Ritchie v. State, 243 Ind. 614,
618, 189 N.E.2d 575, 576 (1963) (“review court, in a proper case, may modify a
judgment of conviction below and affirm it as a conviction of a lesser degree of
the offense charged, or of a lesser crime included therein, where the errors do
not affect the conviction of the lesser offense”) (quoting 5 Am.Jur.2d Appeal
and Error § 938).
Conclusion
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[17] We hold the State presented sufficient evidence to prove Powell committed
Level 1 felony attempted murder as to Davyn. Additionally, the trial court did
not commit fundamental error when it allowed an instruction regarding
transferred intent. However, Powell’s two attempted murder convictions
violate double jeopardy because they arose from the same incident of brutality
and thus we vacate Powell’s conviction of Level 1 felony attempted murder as
to Davyn, reinstate his conviction for Level 3 felony aggravated battery as to
Davyn, and remand to the trial court for resentencing.
[18] Affirmed in part, reversed in part, and remanded.
Mathias, J., and Brown, J., concur.
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