151 N.E.3d 256
Ind.2020Background
- In March 2017 Alain Powell Jr. confronted occupants of a Cadillac over a disputed car, loaded a gun, and fired five to six shots into the vehicle as it began to pull away. Two bullets struck Davyn Nichols; Travis Nichols and rear passenger Troy Clements were largely uninjured.
- The State charged Powell with three counts of attempted murder (one per occupant), criminal recklessness, carrying a handgun without a license, and multiple battery counts; the jury convicted him of two attempted murders (Travis and Davyn) and other offenses but acquitted on the count for Clements.
- The trial court entered an aggregate 64-year sentence (two consecutive 32-year terms for the attempted-murder convictions plus concurrent terms for other offenses).
- On appeal Powell argued his two attempted-murder convictions violated the Double Jeopardy Clause (multiplicity) and that the evidence was insufficient to show intent to kill Davyn; the Court of Appeals vacated the conviction for Davyn.
- The Indiana Supreme Court granted transfer, analyzed whether the attempted-murder statute contains a unit of prosecution and whether Powell’s shots evidenced separate offenses, and ultimately reinstated the conviction for Davyn.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Multiplicity / double jeopardy: May multiple convictions be based on multiple shots fired in a single, short encounter? | State: Multiple victims justify separate attempted-murder counts; each pull of the trigger may be a separate act directed at a person. | Powell: The shooting was a single continuous act; prosecuting multiple counts for one course of conduct violates double jeopardy. | Court: Statute ambiguous on unit of prosecution; given evidence of dual intent, convictions for two attempted murders (one per victim) may stand. |
| Unit of prosecution for attempted murder: Is attempted murder conduct‑based (one offense per incident) or result‑based (separate offenses per victim)? | State: Language referencing "another human being" supports separate punishments per victim. | Powell: Attempt statute focuses on substantial step/conduct, so one incident yields at most one conviction. | Court: Statute is reasonably susceptible to both readings (ambiguous); proceed to fact‑based (second-step) analysis. |
| Sufficiency of evidence of intent to kill Davyn (and related transferred‑intent instruction) | State: Evidence of loaded gun, heated exchange, multiple shots into an occupied car in close proximity supports inference Powell intended to kill both Travis and Davyn. | Powell: He only intended to kill Travis; Davyn was an unintended bystander; transferred intent should not apply to attempt. | Court: The jury reasonably could infer Powell had dual intent to kill both occupants; conviction for Davyn is supported and no reliance on transferred intent was required. |
Key Cases Cited
- Hines v. State, 30 N.E.3d 1216 (Ind. 2015) (statute may define unit of prosecution; guides fragmentation analysis)
- Paquette v. State, 101 N.E.3d 234 (Ind. 2018) (conduct‑based statutes generally permit only one conviction per discrete incident)
- Mathews v. State, 849 N.E.2d 578 (Ind. 2006) (multiple consequences may enhance penalty but do not necessarily create multiple crimes)
- Zickefoose v. State, 388 N.E.2d 507 (Ind. 1979) (attempt statute focuses on defendant’s substantial step, not result)
- O'Connell v. State, 742 N.E.2d 943 (Ind. 2001) (firing successive shots at side‑by‑side victims supports intent to kill both)
- Henley v. State, 881 N.E.2d 639 (Ind. 2008) (intent to kill may be inferred from deliberate use of a deadly weapon)
- Richeson v. State, 704 N.E.2d 1008 (Ind. 1998) (discusses difficulties in drive‑by/shot‑into‑group attempted‑murder cases)
- Duncan v. State, 412 N.E.2d 770 (Ind. 1980) (rule of lenity and caution against splitting one transaction into multiple offenses)
- Bell v. United States, 349 U.S. 81 (1955) (legislature defines the proper unit of prosecution)
- Nunn v. State, 695 N.E.2d 124 (Ind. Ct. App. 1998) (rejects counting each round fired as a separate attempted murder when acts form one continuous burst)