Cory J. Pinkerton v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 17 2012, 8:57 am
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
court of appeals and
collateral estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MATTHEW G. GRANTHAM GREGORY F. ZOELLER
Bowers, Brewer, Garrett & Wiley, LLP Attorney General of Indiana
Huntington, Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CORY J. PINKERTON, )
)
Appellant-Defendant, )
)
vs. ) No. 35A02-1202-CR-94
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON CIRCUIT COURT
The Honorable Thomas M. Hakes, Judge
Cause No. 35C01-1005-FC-131
September 17, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant Cory J. Pinkerton appeals the five-year sentence
enhancement that was imposed under Indiana Code section 35-50-2-11 (the firearm
enhancement statute) subsequent to his conviction for Reckless Homicide,1 a class C
felony. Specifically, Pinkerton contends that there was insufficient evidence for the jury
to find that he knowingly or intentionally used a firearm in the commission of the
underlying offense. Concluding that there was sufficient evidence, we affirm the
judgment of the trial court.
FACTS
On the evening of May 14, 2010, Pinkerton, Donald “J.R.” Barton, Jr., Derek
Farmer, and Pinkerton’s roommates, Ray Johnson and Jared Chapin, gathered at
Pinkerton’s residence as the close friends often did. Around 9:00 p.m., they began
drinking shots of spiced rum. When they finished the first half-gallon of rum, Pinkerton
and Farmer left the residence and purchased a second half-gallon. When they returned,
the group continued to take shots.
Sometime earlier in the day, Barton, who had been regularly staying at the home
except when he exercised parenting time, asked Pinkerton to promise “not to let him
leave no matter what happened.” Tr. p. 625. Barton was going through a divorce at the
time, and he had become increasingly agitated throughout the day about conversations he
had been having on Facebook. Later that evening while Barton, Pinkerton, Johnson, and
1
Ind. Code § 35-42-1-5.
2
Farmer were outside on the front porch smoking cigarettes, Barton told the others they
were like his brothers, and they shared a group hug.
That same night at approximately 2:30 a.m., Barton became “extremely irritated
and insistent that he was going to leave and . . . go get in trouble.” Id. at 626. Pinkerton
and Johnson each tried to convince Barton to stay, but Barton was “completely insistent
he was going.” Id. Believing that he could get Barton to calm down and stay if he
showed Barton that he was being “really stupid,” Pinkerton went upstairs and retrieved
his shotgun, which he always kept loaded, from under his bed. Id. He brought the gun
downstairs, held it over his shoulder so that it was pointed away from everyone, and told
Barton, “all right[,] if you’re going to do something stupid and get in trouble[,] I’m going
with you.” Id. According to Pinkerton, the shotgun was “never supposed to be anything
more than a prop.” Id.While Pinkerton was holding the shotgun over his shoulder, he and Barton
continued to discuss in loud voices whether Barton should leave the home. Although
their discussion was loud, they were not angry nor were any threats made. Rather,
according to Chapin, the volume resulted merely from “just . . . drunk people
communicating.” Tr. p. 275. Chapin, who was in another room and trying to have a
conversation on his cellular telephone, asked Pinkerton and Barton to be quiet so that
their neighbors wouldn’t call the police. When he saw Pinkerton holding the shotgun, he
told Pinkerton that the gun “[didn’t] need to be out” before going back to the other room
and closing the door. Id. at 262.
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Johnson also told Pinkerton that “the shotgun needed to be put up” and that neither
Pinkerton nor Barton should go anywhere. Id. at 193. When Pinkerton and Barton
ignored him and continued their discussion, Johnson left the home out the back door and
went outside. On his way out, he asked Pinkerton to point the gun at the floor so that he
could pass behind him, and Pinkerton complied.
Once Johnson was outside, Barton grabbed the barrel of the shotgun and “pulled it
up towards his face.” Tr. p. 627. He told Pinkerton, “I might as well just fu**ing do this,
it’ll make everything better.” Id. Pinkerton pulled the shotgun away and aimed it back
toward the floor. Barton then grabbed for the barrel of the shotgun with both hands, and
this time, he placed the barrel into his mouth. Farmer, who was sitting at a computer
desk approximately three feet away from Barton and Pinkerton, observed Barton with
control over the barrel of the gun and noted that Barton looked “almost . . . distraught.”
Id. at 238. Less than twenty seconds later, the gun discharged, killing Barton
instantaneously.
After telling the others to leave, Pinkerton called the police. He tossed the now
unloaded shotgun out onto the front porch and waited for the police to arrive. Pinkerton
was arrested and read his Miranda2 rights.
Detective Sergeant Matt Hughes of the Huntington City Police Department
interviewed Pinkerton, who waived his right to have counsel present. Pinkerton
explained what had happened, but he was uncertain about how the gun discharged. He
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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first told Detective Hughes that when Barton grabbed the gun the second time, Barton
grabbed the barrel with his right hand and reached toward the stock with his left hand.
Pinkerton said that in order for the shotgun to fire, the hammer needed to be pulled back
and the trigger needed to be pulled. Pinkerton indicated that he had not pulled the
hammer back. He told Detective Hughes that the hammer might have been pulled back
by Barton when he reached for the stock and that the trigger might also have been struck
by Barton at that time. Pinkerton said that “he didn’t remember exactly what happened”
and “that it all happened really fast and that he was really intoxicated.” Tr. p. 334.
When Detective Hughes explained to Pinkerton that it seemed improbable that
Barton both cocked the hammer and pulled the trigger while he was also holding the
barrel of the gun up to his face, Pinkerton agreed that this version “would not be very
likely.” Id. at 340. Pinkerton then said it was possible that he had cocked the hammer
when he was walking down the stairs with the shotgun or when he had pointed the
shotgun toward the floor, but he stated he couldn’t remember if he had in fact cocked the
hammer or not. He stated he thought it was possible that Barton had cocked the hammer
when he had grabbed the gun the second time. Regarding who pulled the trigger,
Pinkerton told Detective Hughes “that he was extremely intoxicated . . . and that all the
details were very fuzzy to him.” Id. at 341. He also stated that “apparently what he
remembered happening didn’t happen.” Id.
When asked whether it was likely that it was Pinkerton who caused the trigger to
be pulled, Pinkerton replied, “[T]hat’s probably exactly what happened.” Id. at 344. And
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when asked why he would let Barton place the loaded shotgun to his mouth a second
time, Pinkerton responded “that he really didn’t have a good answer for that” and “that he
was very intoxicated.” Id. at 345. He acknowledged that he didn’t resist Barton placing
the gun to his mouth the second time.
At trial, the State offered testimony from several experts, including the crime
scene investigator who processed Pinkerton’s residence as a crime scene, the pathologist
who conducted Barton’s autopsy, a forensic firearms examiner, forensic scientists from
the Indiana State Police biology DNA and latent fingerprint identification units, and a
bloodstain pattern interpretation expert. Through these experts, the State presented
uncontroverted testimony that Barton’s cause of death was “a gunshot wound to the
mouth[,]” that Barton also had “burn-type injuries” to his left hand “caused by holding
the barrel as the weapon was shot[,]” that the high impact blood spatter found on the top
of Barton’s right hand originated from the injuries to Barton’s left hand, that Barton’s
right hand “had to be in close proximity to . . . the front of his face” at the time of
discharge in order for the blood spatter to have reached his right hand, and that it would
have been “impossible” for Barton’s right hand to have been near the trigger when the
shotgun discharged. Tr. p. 505-06, 605, 608. Moreover, the State presented evidence
that the trigger of Pinkerton’s shotgun required approximately seven to seven and a
quarter pounds of applied pressure to fire, that the shotgun could not be characterized as
having a “light trigger[,]” that there was no indication that the shotgun would fire without
the hammer being at least partially cocked and the trigger pulled, and that no DNA
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evidence or fingerprints were found on either the hammer or the trigger of the shotgun
that could assist in identifying who caused the shotgun to discharge. Id. at 514.
Upon conclusion of the evidence, the jury found Pinkerton guilty of reckless
homicide as a class C felony. The second phase of the trial, which concerned the firearm
enhancement, was conducted immediately following the reading of the jury’s verdict. No
additional evidence was presented. After hearing argument from both sides, the jury
determined that the State proved the firearm enhancement beyond a reasonable doubt.
On January 9, 2012, Pinkerton was sentenced to four years for the reckless
homicide conviction, with the entire four-year sentence suspended to probation.
Pinkerton’s sentence was then enhanced by a mandatory term of five years in accordance
with the firearm enhancement statute to be executed in the Indiana Department of
Correction. Alleging insufficient evidence on the enhancement finding, Pinkerton now
appeals.
DISCUSSION AND DECISION
Pinkerton’s sole contention on appeal is that the evidence is insufficient to support
the firearm enhancement. Specifically, Pinkerton claims that the evidence presented by
the State was insufficient to support the jury’s finding that Pinkerton “knowingly or
intentionally used a firearm in the commission of [reckless homicide]” because “even the
State acknowledges that [Pinkerton] did not intentionally pull the trigger.” Appellant’s
Br. p. 4, 9.
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In reviewing claims challenging the sufficiency of the evidence, “we neither
reweigh the evidence nor judge the credibility of the witnesses.” Prickett v. State, 856
N.E.2d 1203, 1206 (Ind. 2006). Rather, we consider only the evidence favorable to the
judgment and any reasonable inferences that can be drawn from such evidence. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). We will affirm unless no reasonable trier of
fact could find the required elements proved beyond a reasonable doubt. Cooper v. State,
940 N.E.2d 1210, 1213 (Ind. Ct. App. 2011).
The reckless homicide statute provides that “[a] person who recklessly kills
another human being commits reckless homicide, a Class C felony.” Ind. Code § 35-42-
1-5. The firearm enhancement statute provides, in relevant part:
(a) As used in this section, “firearm” has the meaning set forth in [Indiana
Code section] 35-47-1-5.
(b) As used in this section, “offense” means:
(1) A felony under [Indiana Code section] 35-42 that resulted in death
or serious bodily injury. . . .
(e) If the jury . . . finds that the state has proved beyond a reasonable doubt
that the person knowingly or intentionally used a firearm in the commission
of the offense, the court may sentence the person to an additional fixed term
of imprisonment of five (5) years.
Ind. Code § 35-50-2-11.
As noted above, Pinkerton alleges that without proof that he intentionally pulled
the trigger, the evidence was insufficient to prove the sentencing enhancement beyond a
reasonable doubt. However, the charging information for the sentencing enhancement
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did not allege that Pinkerton “intentionally” used a firearm; rather, it alleged that
Pinkerton “knowingly used a firearm when he committed the offense of Reckless
Homicide.” Appellant’s App. p. 58 (emphasis added). Moreover, this court has held that
pulling the trigger to discharge a firearm is not the only way that a firearm can be “used.”
See Daniels v. State, 957 N.E.2d 1025, 1030 (Ind. Ct. App. 2011) (defining “use” of a
weapon to mean “brandishing, displaying, bartering, striking with, and most obviously,
firing or attempting to fire, a firearm” and holding that the defendant’s display of a gun
tucked into his waistband was sufficient evidence that the defendant used the gun); see
also Nicoson v. State, 938 N.E.2d 660, 665 (Ind. 2010) (discussing the “difference
between possessing a firearm and using it” and concluding that the defendant used a
firearm when he “discharge[d] the weapon as a warning, aim[ed] it at other human
beings, and brandishe[d] it throughout the whole encounter”).
In the present case, the evidence most favorable to the jury’s determination is that
Pinkerton, while intoxicated, retrieved the shotgun from his bedroom for the express
purpose of brandishing it to cause Barton to change his mind about leaving the home.
Although he was asked twice by his friends to put the gun away, Pinkerton ignored these
requests and continued to display the shotgun. Even after Barton grabbed the shotgun
and pulled it to his face such that Pinkerton had to pull it away, Pinkerton still did not
take the shotgun back to his bedroom. In fact, Pinkerton allowed Barton to place the
loaded shotgun to his mouth a second time. Finally, one of the State’s experts testified
that it would have been impossible for Barton to have pulled the trigger. From this
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evidence, a reasonable trier of fact could have concluded that Pinkerton knowingly
“used” the shotgun during the commission of the reckless homicide. Thus, we cannot say
that the evidence was insufficient to support the firearm enhancement.
The judgment of the trial court is affirmed.
ROBB, C.J., and BRADFORD, J., concur.
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