Camron Douglas Perkins v. State of Indiana ( 2020 )

FILED
Nov 30 2020, 10:03 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy R. Uliana Curtis T. Hill, Jr.
Bargersville, Indiana Attorney General of Indiana
Jodi K. Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Camron Douglas Perkins, November 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-695
v. Appeal from the Henry Circuit
Court
State of Indiana, The Honorable Kit C. Dean Crane,
Appellee-Plaintiff. Judge
Trial Court Cause No.
33C02-1611-MR-3
Riley, Judge.
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 1 of 21
STATEMENT OF THE CASE
[1] Appellant-Defendant, Camron Perkins (Perkins), appeals his conviction for one
Count of felony murder, Ind. Code § 35-42-1-1(2), and one Count of attempted
murder, a Level 1 felony, I.C. §§ 35-42-1-1(1); -41-5-1(A)
[2] We affirm.
ISSUES
[3] Perkins presents three issues on appeal, which we consolidate and restate as the
following two issues:
(1) Whether the trial court abused its discretion by admitting certain evidence;
and
(2) Whether the State presented sufficient evidence beyond a reasonable doubt
to support Perkins’ attempted murder conviction.
FACTS AND PROCEDURAL HISTORY
[4] After a seven-year relationship, in July of 2016, Sierra Cochran (Cochran)
broke up with her boyfriend, Jessie Fulton (Fulton). Fulton did not take the
breakup well, and he often threatened Cochran and Cochran’s housemate
Sheriton Winchester (Winchester). In the Fall of 2016, Fulton moved in with
Kendra Williams (Williams) and her boyfriend Justin Gibson (Gibson), who
lived at 6251 South County Road 325 West in Spiceland, Indiana. Fulton’s
new girlfriend, Danielle Flick (Flick), and other friends including Chance Smith
(Smith), often stayed at the house.
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 2 of 21
[5] Fulton kept a deadbolt on his bedroom door and was selling drugs from
Williams/Gibson’s house. Due to his drug dealing activities, by November
2016, Williams and Gibson wanted Fulton to move out. Also, around
November 2016, Cochran began dating Tyler Pennington (Pennington), and
Winchester, Cochran’s housemate, began dating Pennington’s half-brother,
Devin Asberry (Asberry). Fulton, who was a former friend to both Asberry and
Pennington, was upset by this and he told Cochran he would make her life “[a]
living hell” and he threatened her life and the lives of her family. (Transcript
Vol. III, p. 162). Fulton also threatened Asberry’s life, and the life of his young
son. On two occasions, Pennington and Asberry went to Fulton’s home to try
and resolve the issues Fulton had with them. The first time Fulton refused to
talk with them, it got heated, and Gibson, Fulton’s housemate, made them
leave. On the second occasion, Fulton pulled two guns on Pennington and
Asberry and chased them away. Both times, Pennington and Asberry were
unarmed.
[6] On Saturday morning, November 5, 2016, Asberry approached Perkins, who
was his coworker and friend, and he shared that Fulton had pulled guns on him
and Pennington. Asberry stated that he wanted to go to Fulton’s house to beat
up Fulton and Perkins offered to help. The following morning, Perkins met
with Asberry, Pennington, Cochran, and Winchester at Cochran/Winchester’s
home. Perkins came prepared with a ski mask, gloves, and two handguns: a
Remington .45 caliber semi-automatic handgun and a Colt .22 caliber semi-
automatic handgun. Perkins, Asberry, and Pennington discussed scaring and
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 3 of 21
beating Fulton. Perkins stated that he wanted to “pistol whip” someone. (Tr.
Vol. III, p. 176). Asberry and Pennington sent their girlfriends Cochran and
Winchester to Walmart to buy long sleeve shirts to cover their2 tattoos,
toboggan masks, gloves, and duct tape.
[7] On November 7, 2016, at approximately 3:00 a.m., Perkins, Asberry and
Pennington drove to Fulton’s house. Each of them possessed a handgun:
Perkins was armed with the Remington .45 handgun; Asberry possessed
Perkins’ Colt .22 handgun; and Pennington was armed with a 9mm handgun.
Pennington parked about one-half mile from Fulton’s house, and the three men
walked through a cornfield and woods to get to Fulton’s house. While
watching the house from a distance, Perkins and Asberry developed cold feet
and wanted to abort the mission but Pennington was “kind of pumped up about
it” since he had “never done anything like that.” (State’s Exh. VIII, p. 25).
Nonetheless, they all proceeded with the plan. Perkins approached the back
door and observed Smith sitting on the couch texting on his phone. With
Pennington’s encouragement, Perkins entered Fulton’s house by opening the
unlocked back door. Pennington and Asberry followed behind. Once inside,
Perkins ordered Smith not to move. Pennington and Asberry proceeded to
forcefully open Williams’ and Gibson’s bedroom door. Twice, Asberry
demanded Williams’ phone, but Williams stated that she did not have one.
Before Asberry and Pennington exited Williams’ and Gibson’s bedroom, they
ordered Williams not to move. Scared of the men, Williams threw a blanket
over her face. Gibson remained asleep in their bed.
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 4 of 21
[8] Meanwhile Perkins, who was watching Smith in the living room, stepped away
and walked toward Fulton’s bedroom door. Perkins kicked it open, and
Asberry and Pennington stormed into Fulton’s bedroom. Asberry and
Pennington demanded money and the safe from Fulton. Fulton was
subsequently hit with a gun as he tried to wrestle with one of them. The gun
discharged, and Fulton’s girlfriend, Flick, screamed and threw a blanket over
herself. To defend himself, Fulton grabbed his .38 revolver from underneath his
bed and fired all five rounds at Pennington and Asberry. Pennington and
Asberry returned fire. Perkins appeared to have returned to the living room,
and he shot Smith in the right shoulder with his Remington .45 caliber
handgun. All three men then ran out of Fulton’s house.
[9] Perkins and Asberry ran back through the cornfield to where they had parked
their vehicle while Pennington, who had been shot by Fulton in his left arm,
ran in a different direction. While running toward the vehicle, Asberry threw
his shirt, toboggan mask, and gloves down. On their drive back to
Cochran/Winchester’s house, Perkins threw his mask and gloves out of the
window. With no means to get home, Pennington called Cochran to pick him
up. She found Pennington bleeding on the side of the road. Pennington told
Cochran that Fulton had shot him and that he had shot Fulton in return.
Before going to the hospital, Cochran drove Pennington to his cousin’s house
where he left his 9 mm handgun.
[10] Meanwhile at Fulton’s house, Smith approached Gibson’s girlfriend, Williams,
and told her that he needed help because he was losing a lot of blood. As
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 5 of 21
Williams followed Smith back to the couch, she saw Fulton on his bedroom
floor screaming in pain from a gunshot wound to his right shoulder. Williams
attempted to stop Smith’s bleeding, while Fulton’s girlfriend, Flick, called 911.
Despite medical intervention at the hospital, Smith died. The bullet recovered
from Smith’s body was fired from Perkins’ Remington .45 semi-automatic
handgun.
[11] Several hours after the shooting, the New Castle Police Department
interviewed Asberry, Cochran, and Winchester. From those interviews,
Perkins became a person of interest in the shooting. Later that afternoon,
Perkins voluntarily presented himself at the police station to give a statement.
Captain Detective Scott Ullery (Captain Ullery) and Detective Mark Reece
(Detective Reece) conducted the interview. Perkins was given his Miranda
warnings and he waived those rights. After he repeatedly denied his role in the
shooting, Perkins requested an attorney. At that point, Captain Ullery and
Detective Reece stopped the interview, but before exiting the room, they
informed Perkins that he was being detained for the investigation. A short time
thereafter, Perkins requested a cigarette, and Captain Ullery asked Sergeant
Chase Hightower (Sergeant Hightower) to take Perkins outside so that he could
smoke the cigarette. Captain Ullery advised Sergeant Hightower not to
question Perkins about the shooting since Perkins had invoked his right to
counsel.
[12] Sergeant Hightower and Perkins knew each other from prior encounters. While
smoking, Perkins spontaneously stated to Sergeant Hightower that he did not
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 6 of 21
shoot anybody, and, twice, Sergeant Hightower reminded Perkins that he could
not directly speak with him about the case. Perkins also indicated that he did
not like Detective Reece’s disrespectful attitude toward him, and he preferred
having a second interview with Sergeant Hightower. Sergeant Hightower
stated that he was not sure if that was possible and he had to consult with his
superior. Sergeant Hightower, however, warned Perkins that Captain Ullery
would be present at a second interview. Perkins stated that he was okay with
that. Sergeant Hightower subsequently placed Perkins back in the interview
room and approached Captain Ullery, who then consulted with the prosecutor.
[13] Approximately eleven minutes after the first interview ended, Sergeant
Hightower and Captain Ullery entered the interview room to commence a
second interrogation and the following exchange occurred:
[Captain] Ullery: [Perkins] you were advised of your rights
earlier do you understand your rights are still in force and you
have not waived those rights, do you understand that?
Perkins: Yeah, well I did waive my rights but now I’m not.
[Captain] Ullery: Well, . . . what I’m saying is, you were advised
of your rights and you understand what your rights were and
during our first interview you uh, said that you thought you
might want to talk to an attorney, now it’s my understanding that
you contacted [Sergeant] Hightower and have reinitiated contact
with us and you want to talk to us.
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 7 of 21
Perkins: Well I just, I just want to talk about like what’s going
on and like the options and like what charges are being brought
up and stuff like that . . .
[Sergeant] Hightower: Here’s the thing, do you want to talk to us
or not? It’s yes or no[?]
[Captain] Ullery: You’ve already initiated contact, I can’t tell
you where the investigation is going . . .
Perkins: I don’t want to go to prison guys, I don’t want to get in
trouble[.]
[Captain] Ullery: . . . I came back in here because I was told you
want to talk to us, so . . . do you want to talk to us or not, it’s
totally up to you?
Perkins: I don’t know man . . .
Perkins: Sure[.]
[Captain] Ullery: So is that a yes?
Perkins: yeah[.]
(State’s Exh. Vol. VIII, pp. 12-13). After being questioned repeatedly regarding
the shooting, Perkins agreed to talk. Perkins began explaining that the day
before the shooting, he was at work when Asberry approached him and shared
with him about Fulton pointing a gun at him and making death threats.
Perkins responded by stating that Asberry should beat Fulton’s “ass.” (State’s
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 8 of 21
Exh. VIII, p. 19). Asberry and Perkins then talked about “guns and stuff” and
about taking Fulton’s safe which contained money and drugs. (State’s Exh.
VIII, p. 19). Perkins agreed to meet Asberry and Pennington later that day.
Perkins confessed that the original plan was to go Fulton’s house and scare him
and not engage in a shootout. Notwithstanding his statement, Perkins stated
that he brought his Remington .45 handgun and his Colt .22 handgun with him
to Fulton’s. Perkins added that he maintained possession of the Remington .45
handgun, while Asberry had his Colt .22 handgun and Pennington had his own
9mm handgun. Perkins stated that he did not know if he discharged his gun
since he was very scared. Perkins believed that either the 9mm handgun which
Asberry had or the Colt .22 handgun which Pennington had at the time of the
shooting killed Smith because he did not shoot anyone. Perkins then stated that
both of his handguns were at his mother’s house. Pursuant to a search warrant,
both handguns were recovered.
[14] On November 10, 2016, the State filed an Information, charging Perkins with
two Counts of felony murder and one Count of attempted murder, a Level 1
felony. On December 20, 2019, Perkins filed a motion to suppress the
incriminating statements he made during the second interview. On January 13,
2020, the trial court conducted a hearing, and took the matter under
advisement. The following day, the trial court issued an Order, denying
Perkins’ motion to suppress the statements he made during his second interview
after determining that while Perkins had validly invoked his right to counsel
during the first interview, Perkins “initiated further discussions with law
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 9 of 21
enforcement officers and knowingly and intelligently waived the right
previously invoked.” (Appellant’s App. Vol. II, p. 116).
[15] A jury trial commenced on January 27, 2020. Winchester and Cochran
admitted that they went to Walmart to buy toboggans, black shirts, gloves, and
duct tape because Asberry and Pennington had asked them to go purchase the
items. They also claimed that Pennington and Asberry had discussed going to
Fulton’s house to confront Fulton. There were also discussions by Pennington
to take Fulton’s safe which possibly contained money and drugs. Cochran
stated that Perkins did not actively participate in the discussions, however,
Cochran heard Perkins say that he wanted to pistol whip someone. Cochran
testified that shortly after the shooting, Pennington called her to come pick him
up and she found him bleeding on the side of the road. Pennington told
Cochran he had shot Fulton. Over Perkins’ objection, the trial court admitted
Perkins’ video interviews. Further, the autopsy report revealed that Smith died
from a gunshot wound to his right shoulder. An Indiana State Police analyst
opined that the fatal gunshot that killed Smith was fired from Perkins’
Remington .45 semi-automatic handgun.
[16] At the close of the evidence, the jury found Perkins guilty as charged. At
sentencing, the trial court vacated one of the felony murder verdicts. The trial
court then imposed a sixty-year sentence on the remaining felony murder
conviction, and a consecutive thirty-five-year sentence on the Level 1 felony
attempted murder.
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 10 of 21
[17] Perkins now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Admission of the Evidence
[18] When ruling on the admissibility of evidence, the trial court is afforded broad
discretion, and we will only reverse the ruling upon a showing of abuse of
discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). An abuse
of discretion involves a decision that is clearly against the logic and effect of the
facts and circumstances before the court. Id. We consider the evidence most
favorable to the trial court’s ruling and any uncontradicted evidence to the
contrary to determine whether there is sufficient evidence to support the ruling.
Id.[19] Perkins contends that the statements he made during the second interview were
obtained in violation of his Fifth Amendment right to counsel and that the trial
court therefore abused its discretion in admitting them.
[20] The Self-Incrimination Clause of the Fifth Amendment to the United States
Constitution provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself[.]” U.S. Const. amend. V. This
constitutional safeguard is applicable to the several states via the Fourteenth
Amendment. Bleeke v. Lemmon, 6 N.E.3d 907, 925 (Ind. 2014). 1 In Miranda v.
1
We note that Article 1, Section 14 of the Indiana Constitution also provides individuals with a similar right
to be free from self-incrimination. Perkins, however, does not make any cognizable argument under the
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 11 of 21
Arizona, 384 U.S. 436, 469 (1966), the United States Supreme Court held that,
to protect this right against self-incrimination, a suspect must be informed of the
right to remain silent and the right to have counsel present during a custodial
interrogation. The Miranda Court further held that when an “individual states
that he wants an attorney, the interrogation must cease until an attorney is
present. At that time, the individual must have an opportunity to confer with
the attorney and to have him present during any subsequent questioning.” Id.
at 474. Accordingly, if a person in custody unequivocally invokes his right to
counsel, police must immediately and “scrupulously honor” that request and
cease all further interrogation, unless the suspect initiates further
communication with the police. Bean v. State, 973 N.E.2d 35, 40 (Ind. Ct. App.
2012) (citing Miranda, 384 U.S. at 479), trans. denied. Although police stations
are not required to “have a ‘station house lawyer’ present at all times to advise
prisoners[,]” law enforcement must cease questioning an individual until he has
the opportunity to consult with counsel. Miranda, 384 U.S. at 474.
[21] Even if the accused initially elects to waive his rights, such waiver may later be
rescinded at any time, and “[i]f the right to counsel or the right to remain silent
is invoked at any point during questioning, further interrogation must cease.”
Carr v. State, 934 N.E.2d 1096, 1102 (Ind. 2010) (quoting Berghuis v. Thompkins,
Indiana Constitution. For this reason, we do not discuss Article 1, Section 14 and focus our analysis solely
on the Fifth Amendment. See Haviland v. State, 677 N.E.2d 509, 513 n.2 (Ind. 1997).
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 12 of 21
560 U.S. 370, 387-88 (2010)). Where the police continue to question an
individual after he has indicated he wants an attorney, “a heavy burden rests on
the government to demonstrate that the defendant knowingly and intelligently
waived his privilege against self-incrimination and his right to retained or
appointed counsel.” Miranda, 384 U.S. at 475.
[22] If, however, the accused on his own “initiates further communication,
exchanges, or conversations” with law enforcement, then the accused may be
questioned further without counsel present. Edwards v. Arizona, 451 U.S. 477,
484-85 (1981). Subsequent cases from the Court “have interpreted [Edwards] to
mean that the authorities may not initiate questioning of the accused in
counsel’s absence.” Minnick v. Mississippi, 498 U.S. 146, 152 (1990).
[23] The initiation of further communication by an accused, standing alone, is not
sufficient to establish a waiver of the previously asserted right to counsel.
Osborne v. State, 754 N.E.2d 916, 922 (Ind. 2001). If the accused did initiate
further communication, then the subsequent inquiry is whether there is a valid
waiver of the right to counsel, i.e., whether the purported waiver was knowing
and intelligent under the totality of the circumstances. Id. “[E]ven if a
conversation . . . is initiated by the accused, where reinterrogation follows, the
burden remains upon the prosecution to show that subsequent events indicated
a waiver of the Fifth Amendment right to have counsel present during the
interrogation.” Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983).
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 13 of 21
[24] A few hours after the shooting, Perkins presented himself at the police station
for questioning. Perkins was given his Miranda warnings and he waived those
rights. After repeatedly denying his involvement in the attempted robbery of
Fulton’s drugs and money and in the shootings of Smith and Fulton, he
invoked his right to counsel. Captain Ullery and Detective Reece ended the
interview, informed Perkins that he was not free to leave, and they exited the
interrogation room. Perkins then requested a cigarette. Sergeant Hightower
was asked to accompany Perkins outside to smoke a cigarette but was
cautioned not to question Perkins about the impending investigation since
Perkins had requested an attorney. Once outside, Perkins spontaneously
declared that he did not shoot anybody, and twice, Sergeant Hightower
reminded Perkins that he could not speak with him about the case. Perkins
then informed Sergeant Hightower that he was willing to be interviewed by
him, but he did not want Detective Reece present at a second interview.
Approximately eleven minutes after the first interview ended, Perkins was again
put in the interrogation room since he had initiated conversation with Sergeant
Hightower. At the start of the second interview, Captain Ullery attempted to
clarify if Perkins wanted to make further statements regarding the robbery and
shooting despite the fact that Perkins had invoked his right to an attorney, and
the following exchange occurred:
[Captain] Ullery: [Perkins] you were advised of your rights
earlier do you understand your rights are still in force and you
have not waived those rights, do you understand that?
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 14 of 21
Perkins: Yeah, well I did waive my rights but now I’m not.
[Captain] Ullery: Well, . . . what I’m saying is, you were advised
of your rights and you understand what your rights were and
during our first interview you uh, said that you thought you
might want to talk to an attorney, now it’s my understanding that
you contacted [Sergeant] Hightower and have reinitiated contact
with us and you want to talk to us.
(State’s Exh. Vol. VIII, p. 12). When Perkins answered Captain Ullery’s
question with, “I just want to talk about like what’s going on and like the
options and like what charges are being brought up and stuff like that,”
Sergeant Hightower cut Perkins off and the following exchange then occurred
[Sergeant] Hightower: Here’s the thing, do you want to talk to us
or not? It’s yes or no[?]
[Captain] Ullery: You’ve already initiated contact, I can’t tell
you where the investigation is going . . .
Perkins: I don’t want to go to prison guys, I don’t want to get in
trouble[.]
[Captain] Ullery: . . . I came back in here because I was told you
want to talk to us, so . . . do you want to talk to us or not, it’s
totally up to you?
Perkins: I don’t know man . . .
Perkins: Sure[.]
[Captain] Ullery: So is that a yes?
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 15 of 21
Perkins: [Y]eah[.]
(State’s Exh. Vol. VIII, pp. 12-13).
[25] Here, it is evident that Perkins was fully advised of his rights at the beginning of
the first interview, he stated that he understood his Miranda rights, and signed a
written waiver. After a few minutes of questioning, Perkins invoked his right to
counsel, and Captain Ullery and Detective Reece immediately terminated the
interview. Approximately eleven minutes later, however, Perkins changed his
mind and reinitiated communication. He told Sergeant Hightower that he
wanted to talk to the police. The second part of the interview began with
Captain Ullery reminding Perkins that he had been given his Miranda warnings
and that he had invoked his right of counsel. Because Captain Ullery reminded
Perkins of his Miranda rights prior to the second interview and verified that he
understood these, Captain Ullery’s caution that Perkins rights still applied when
Perkins restarted the interrogation is sufficient to establish that Perkins
voluntarily waived his right to counsel upon resumption of the police interview.
See Osborne, 754 N.E.2d at 922.
[26] Moreover, there is no evidence, and Perkins does not direct us to any, that he
lacked the capacity to understand his rights, and at no point did Sergeant
Hightower and Captain Ullery threaten, intimidate, deceive, or make promises
in order induce Perkins to continue the second interview. Osborne, 754 N.E.2d
at 922. Likewise, the decision to waive his right to counsel at the start of the
second interview was an informed one. Based on the totality of the
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 16 of 21
circumstances, we conclude that Perkins knowingly, voluntarily, and
intelligently waived his right to counsel following his request for an attorney.
Accordingly, we hold that Perkins’ right to counsel was not violated and the
trial court did not abuse its discretion by admitting the statements Perkins made
during the second interview.
II. Sufficiency of the Evidence
[27] Perkins argues that there was insufficient evidence to convict him of Level 1
felony attempted murder of Fulton. When reviewing the sufficiency of the
evidence needed to support a criminal conviction, we neither reweigh evidence
nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).
“We consider only the evidence supporting the judgment and any reasonable
inferences that can be drawn from such evidence.” Id. We will affirm if there is
substantial evidence of probative value such that a reasonable trier of fact could
have concluded the defendant was guilty beyond a reasonable doubt. Id.[28] A person who “knowingly or intentionally kills another human being” commits
murder, a felony. I.C. § 35-42-1-1(1). Indiana’s attempt statute states: “A
person attempts to commit a crime when, acting with the culpability required
for commission of the crime, the person engages in conduct that constitutes a
substantial step toward commission of the crime. An attempt to commit a
crime is a felony or misdemeanor of the same level or class as the crime
attempted. However, an attempt to commit murder is a Level 1 felony.” I.C. §
35-41-5-1(a).
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 17 of 21
[29] Perkins argues that “the State did not present any evidence that [he] even shot
towards Fulton.” (Appellant’s Br. p. 18). The State argues that the jury
properly found that Perkins had an intent to kill Fulton when he aided
Pennington in the attempted murder of Fulton.
[30] A conviction for attempted murder requires proof that the defendant had the
specific intent to kill. Spradlin v. State, 569 N.E.2d 948, 949 (Ind. 1991). Under
Indiana’s accomplice liability statute, a person “who knowingly or intentionally
aids, induces, or causes another person to commit an offense commits that
offense[.]” I. C. § 35-41-2-4. To convict a defendant for attempted murder
under accomplice liability also requires the State to prove the defendant, “with
the specific intent that the killing occur, knowingly or intentionally aided,
induced, or caused his accomplice to commit the crime of attempted murder.”
Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000). Thus, when the State seeks
to convict a defendant of attempted murder on an accomplice liability theory, it
must prove: “(1) that the accomplice, acting with the specific intent to kill, took
a substantial step toward the commission of murder, and (2) that the defendant,
acting with the specific intent that the killing occur, knowingly or intentionally
aided, induced, or caused the accomplice to commit the crime of attempted
murder.” Id.[31] Accomplice liability applies to the contemplated offense, as well as all acts that
are a probable and natural consequence of the concerted action. Wieland v.
State, 736 N.E.2d 1198, 1202 (Ind. 2000). The jury was instructed that Perkins
could be convicted as an accomplice to Pennington, who was charged with the
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 18 of 21
attempted murder of Fulton. To determine whether a defendant aided another
in the commission of the crime, the fact-finder considers: (1) presence at the
crime scene; (2) companionship with another engaged in a crime; (3) failure to
oppose the commission of the crime; and (4) the course of conduct before,
during, and after the occurrence of the crime. Wright v. State, 950 N.E.2d 365,
368 (Ind. Ct. App. 2011). As a general rule, mere presence at the scene of the
crime is not itself sufficient to allow an inference of participation in the crime.
Griffin v. State, 413 N.E.2d 293, 295 (Ind. Ct. App. 1981). Such presence may,
however, be considered with other evidence as a factor in determining a
defendant’s guilt. Id.[32] Williams, Gibson, and Fulton, all testified to the confrontation between Fulton,
Asberry, and Pennington, during which Fulton pointed his guns at Asberry and
Pennington. Cochran and Winchester testified that Perkins came to their
residence and discussed with Asberry and Pennington a plan of confronting
Fulton. The plan was to “shut it down” and put an “end to the arguing.” (Tr.
Vol. III, p. 112-13). Asberry and Pennington specifically talked about shooting
“if something bad happen[ed].” (State’s Exh. Vol. VIII, p. 8). Perkins stated
that he wanted to “pistol whip” someone, presumably Fulton. (Tr. Vol. III, p.
176).
[33] Knowing that a gun battle with Fulton was highly probable, Perkins offered his
help. When Perkins presented himself at Cochran/Winchester’s residence, he
brought with him a ski mask, gloves, and two handguns—the Remington .45
handgun that killed Smith and the Colt .22 handgun that he lent to Asberry.
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 19 of 21
Winchester testified that on the day of the shooting, Perkins, Asberry, and
Pennington were each armed with handguns before they left for Fulton’s house.
[34] When the three men arrived at Fulton’s residence, Perkins entered first and he
secured Smith, and then waited while Asberry and Pennington terrorized
Williams in her bedroom. To further offer his assistance with the plan of
attacking Fulton, Perkins, who was watching Smith, momentarily left Smith
and walked toward Fulton’s bedroom door and kicked it in. Moments later,
Asberry and Pennington stormed into Fulton’s bedroom, and as anticipated by
all, a gun battle ensued. Both Fulton and Smith were shot in the process.
Perkins, Asberry, and Pennington thereafter ran out of Fulton’s house. Perkins
and Asberry drove back together to Cochran/Winchester’s residence.
However, Pennington, who had been shot, ran in a different direction, and had
no means to return to Cochran/Winchester’s house. Pennington called
Cochran, who picked him up by the side of the road. Pennington admitted to
Cochran that he had aimed and shot at Fulton.
[35] In sum, Perkins knew that Asberry and Pennington intended violence on
Fulton by confronting Fulton at his home with guns, and possibly stealing his
drugs and money. Asberry and Pennington specifically talked to Perkins about
shooting if something bad happened. Perkins indicated that he wanted to pistol
whip someone. Perkins brought with him his two handguns to assist with the
plan. At no time did Perkins oppose the commission of the crimes. Perkins
was present at the crime scene and he actively participated by kicking in
Fulton’s door and shooting Smith. Pennington admitted to Cochran that he
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 20 of 21
had aimed and shot at Fulton. Lastly, while we note the plan of attacking
Fulton and stealing from Fulton was not Perkins’ plan, his course of conduct,
before, during, and after the occurrence of the crimes showed that he actively
participated in the attempted murder of Fulton. See Wright, 950 N.E.2d at 368.
Viewing this evidence in the light most favorable to the verdict, we conclude
there was sufficient evidence to support Perkins’ Level 1 felony attempted
murder conviction.
CONCLUSION
[36] In light of the foregoing, we hold Perkins’ right to counsel was not violated and
the trial court did not abuse its discretion by admitting the statements Perkins
made during the second interview. In addition, we hold that the State
presented sufficient evidence beyond a reasonable doubt to sustain the Perkins’
attempted murder conviction.
[37] Affirmed.
[38] May, J. and Altice, J. concur
Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 21 of 21