127 N.E.3d 1280
Ind. Ct. App.2019Background
- In March 2017 Powell confronted a black Cadillac occupied by Travis Nichols (driver), passenger Davyn Nichols (victim), and Troy Clements after learning of a dispute over a Ford Taurus.
- Powell pulled his orange Cadillac alongside the black Cadillac, argued with Travis, and was observed holding and "loading" a gun.
- As Travis began to drive away, Powell fired five to six shots toward the black Cadillac; Davyn was struck and severely injured.
- Powell was charged with three counts of Level 1 attempted murder (for Travis, Davyn, Clements) plus several battery, recklessness, and weapons counts; jury acquitted on the Clements count but convicted on the others.
- The trial court entered convictions for two attempted murders and other offenses, imposed consecutive 32-year terms for each attempted murder (aggregate 64 years), and applied a firearm enhancement.
- On appeal the court addressed sufficiency of evidence for attempted murder as to Davyn, the transferred-intent jury instruction, and a double jeopardy challenge to the two attempted-murder convictions.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Powell) | Held |
|---|---|---|---|
| Sufficiency of evidence that Powell intended to kill Davyn (attempted murder) | Evidence of aiming and firing multiple shots toward the car where Davyn sat, use of a deadly weapon, and ongoing hostility permits inference of intent to kill Davyn | Powell conceded intent toward Travis but argued no proof he specifically intended to kill Davyn (the injured party) | Affirmed: jury could infer intent to kill Davyn from shooting multiple times at the vehicle where she sat, supporting attempted murder conviction against Davyn |
| Jury instruction on transferred intent | Instruction explains transferred intent doctrine applies when harm intended for one person injures another | Powell objected to a portion of the State’s proposed instruction that hypothetically referenced a victim who died; he agreed to a modified (shorter) instruction | No reversible error: Powell invited the instruction error by agreeing to the modified instruction, so he may not challenge it on appeal |
| Double jeopardy: whether two attempted-murder convictions arise from same offense/evidence | State relied on the single shooting incident as supporting separate attempted-murder convictions | Powell argued the convictions arose from the same evidence/incident and so violate double jeopardy | Reversed in part: convictions for two attempted murders violated double jeopardy under the actual-evidence test; conviction as to Davyn vacated and aggravated-battery conviction reinstated; remand for resentencing |
Key Cases Cited
- Drane v. State, 867 N.E.2d 144 (Ind. 2007) (standard for sufficiency review and deference to the factfinder)
- Sprandlin v. State, 569 N.E.2d 948 (Ind. 1991) (State must prove intent to kill for attempted murder)
- Leon v. State, 525 N.E.2d 331 (Ind. 1988) (discharging a weapon in direction of a victim supports inference of intent to kill)
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (double jeopardy actual-evidence test for overlapping offenses)
- Curry v. State, 740 N.E.2d 162 (Ind. Ct. App. 2000) (single incident of brutality can trigger double jeopardy under actual-evidence test)
- Ritchie v. State, 189 N.E.2d 575 (Ind. 1963) (appellate courts may modify convictions to lesser included offenses and reinstate them when appropriate)