Johnson v. StateJohnson v. State
- Reporters:
- ,
- Before:
- Pivarnik
Defendant-Appellant Teresa A. Johnson was found guilty by the Marion Superior Court of two counts of class A felony attempted murder. She subsequently was sentenced to concurrent terms of thirty years imprisonment for each conviction. Appellant now directly appeals and raises the following six issues for our review:
1. accepting Appellant‘s waiver of trial by jury;
2. overruling Appellant‘s Motion to Quash;
38. , sufficiency of the evidence;
4. failure to entertain Appellant‘s intoxication defense;
5. sentencing on separate counts; and
6. sentencing to manifestly unreasonable terms of imprisonment.
The facts show that the instant crimes occurred between 2:80 and 8:80 p.m. on July 16, 1981. Jackie Gordon and Sherry Sher-rod, both approximately eighteen years of age, had left Sherry‘s place of employment and were enroute to a health spa. While driving along 87th Street in Indianapolis, they observed a white Monte Carlo automobile in front of them being driven by Appellant. Said automobile was also occupied by Appellant‘s brother and young son. Appellant slowed down and speeded up several times before finally stopping at an intersection where she remained for several minutes. Jackie got out of her car and walked to Appellant‘s car to determine if she needed assistance. Appellant‘s brother replied to Jackie‘s inquiry saying: “Dumb nigger can‘t you understand English?” Appellant thereupon stepped out of her car and walked towards Jackie‘s car where she used foul language and made racial slurs against the two women before ordering them to leave. As Jackie attempted to get back into her car, Appellant shoved her thereby precipitating a fight. Appellant‘s brother yelled racial slurs at the women as they fought with Appellant. Appellant eventually returned to her car which she turned around and drove by the women to shout more insults at them. Sue Clemens, a nearby resident, witnessed the fight and telephoned the police. Sherry had written down the license number of Appellant‘s automobile which she gave to the police. The police advised the women to file charges at the prosecutor‘s office.
Since Jackie‘s keys had been lost in the melee, Jackie and Sherry began searching the area near Jackie‘s car for them. Appellant again approached in her automobile. Jackie testified that Appellant had a mean look on her face and was postured close to the steering wheel. Appellant sped up and drove her car at Jackie knocking Jackie
I
Appellant claims that the trial court erred by accepting her waiver of a jury trial. She specifically claims that the Record does not show that she knowingly, intelligently and voluntarily waived her right to trial by jury. The Record, however, shows that Appellant filed a written waiver of jury trial. It further shows that Appellant was questioned by the trial judge in open court about her waiver. The trial judge explained to Appellant the rights she would have with a jury deciding her case and how a jury trial compares to a bench trial. Appellant thereafter told the trial judge in open court that she did not desire a jury trial and was willing to be tried by the court.
This Court previously has affirmed a bench trial conviction obtained after a defendant waived in writing his jury trial right. Rodgers v. State, (1981) Ind., 415 N.E.2d 57. Appellant now relies on Good v. State, (1977) 267 Ind. 29, 366 N.E.2d 1169, reh. denied, and Cunningham v. State, (1982) Ind.App., 433 N.E.2d 405, to support her argument that her waiver of a jury trial was improperly accepted. Appellant‘s reliance is misplaced, however, since our reversals in Good and Cunningham were predicated on the fact that the Records in Good and Cunningham were devoid of any personal waiver by those defendants, either in court or in writing. Since Appellant‘s waiver was made both in writing and in open court after instruction by the court, the trial court properly accepted it. The trial court properly found that Appellant waived her right to a jury trial.
II
Appellant next claims that the trial court erred by denying her Motion to Quash the Information. Appellant was charged with two counts of attempted murder pursuant to
III
Appellant next contends that there was insufficient evidence of probative value to prove each element of attempted murder beyond a reasonable doubt. Appellant specifically claims that there was no evidence proving her intent to kill the two victims. Appellant concedes that an automobile can be a deadly weapon if used or intended to be used in a manner readily capable of causing serious bodily harm even though an automobile is not particularly defined as a deadly weapon in our criminal code. We agree. The pertinent statute states:
” ‘Deadly weapon’ means:
(1) A loaded or unloaded firearm; or
(2) A weapon, device, equipment, chemical substance, or other material that in the manner it is used, or could ordinarily be used, or is intended to be used, is readily capable of causing serious bodily injury.”
Jackie and Sherry testified that in their first encounter with Appellant, she screamed racial slurs at them and attacked Jackie causing an altercation. Appellant later drove back at an accelerated rate of speed along a residential street to the spot where the women were searching for Jackie‘s lost keys. Appellant claims that she merely lost control of her car and did not intend to strike the women. The testimonies of the women, however, was in direct conflict. They testified that Appellant was able to drive around two cars and weave her way directly to them. During this second encounter, Appellant yelled at the women: “You‘re dead” and “I‘m gonna get you.” The two observed Appellant deliberately steer her car directly to Jackie with what they described as a “mean look” on her face. Appellant thereafter turned her car to go directly to Sherry and strike her. She then left the scene and fled. Appellant subsequently stopped at a nearby house to call a tow truck but would give no information to the residents of the house. When she later was apprehended at a service station but before the police were able to mention the instant criminal deeds, Appellant said to the officers: “I didn‘t hit those two girls.”
The crime of attempt has two elements: acting with a specific intent to commit the substantive crime and taking a substantial step toward its commission. Anthony v. State, (1980) Ind., 409 N.E.2d 632; Zickefoose v. State, (1979) 270 Ind. 618, 388 N.E.2d 507. This Court has held that to prove the requisite intent for attempted murder, the State must prove the intent needed to support a murder charge. Scott v. State, (1980) Ind., 413 N.E.2d 902. This intent may be inferred from the use of a deadly weapon in a manner likely to cause death or great bodily harm. Anthony, supra; Loyd v. State, (1980) 272 Ind. 404, 398 N.E.2d 1260, cert. denied 449 U.S. 881, 101 S.Ct. 231, 66 LEd.2d 105; Wollam v. State, (1978) 269 Ind. 286, 380 N.E.2d 82. The trier of fact may draw reasonable inferences from the direct or circumstantial evidence and a guilty verdict may be based upon - circumstantial - evidence - alone. Medsker v. State, (1968) 249 Ind. 369, 232 N.E.2d 869. Since there was evidence of probative value in the instant case from which the trial court could find or infer that all of the elements of the charged crimes were proved beyond a reasonable doubt, Appellant‘s convictions will not be set aside. Poindexter v. State, (1978) 268 Ind. 167, 374 N.E.2d 509; Henderson v. State, (1976) 264 Ind. 334, 343 N.E.2d 776.
Appellant claims that the trial court erred by not finding her innocent pursuant to her affirmative voluntary intoxication defense. Since attempted murder is a specific intent crime, the defense of voluntary intoxication was available to Appellant. See Zickefoose, supra: However, in order for Appellant to be relieved from responsibility for the charged crimes by reason of intoxication she must have been so intoxicated as to have been incapable of forming the required specific intent. Greider v. State, (1979) 270 Ind. 281, 385 N.E.2d 424, reh. denied; Patterson v. State, (1978) 267 Ind. 515, 371 N.E.2d 1309. Appellant‘s intoxication is a factual question to be decided by the trier of fact and Appellant bears the burden of proof. So long as Appellant was capable of conceiving a design, she will be presumed-in the absence of contrary proof-to have intended the natural consequences of her acts. Greider, supra. In this situation as with all issues involving sufficiency of the evidence on appeal, we will not reweigh the evidence nor judge the credibility of the witnesses. We will consider only that evidence most favorable to the State together with all reasonable and logical inferences drawn therefrom. When there is substantial evidence of probative value supporting the trial court‘s findings, the verdict will not be set aside. Poindexter, supra; Grigsby v. State, (1978) 267 Ind. 465, 371 N.E.2d 384; Henderson, supra.
Appellant testified that she had consumed a large volume of alcohol and drugs which encumbered her ability to form a specific intent. There was conflicting evidence on this issue, however, as witnesses who observed Appellant at the time of the incident testified that they did not smell alcohol on her and that her conduct did not indicate intoxication. This issue is a factual one to be determined by the trial judge and there was probative evidence justifying the conclusion reached. We find no error.
V
Appellant also contends that the trial court erred when it entered judgment and sentenced her to thirty years imprisonment on each of the two counts charged. Appellant was charged, tried and convicted in Count I of the attempted murder of Jackie Gordon and in Count II of the attempted murder of Sherry Sherrod. The test for determining whether or not separate sentences may be imposed upon multiple counts is whether the charged offenses are themselves the same and not whether they arose from the same criminal act or course of conduct. Elmore v. State, (1978) 269 Ind. 532, 382 N.E.2d 893; Pruitt v. State, (1978) 269 Ind. 559, 382 N.E.2d 150. Here Appellant was charged with attempted murder against two victims. Obviously the crime against one victim is separate and distinct from the crime against the other victim. This case involves two separate crimes committed against two separate victims and separate sentences were properly imposed for each crime. Riley v. State, (1982) Ind., 432 N.E.2d 15, reh. denied. There is no error on this issue.
VI
The trial court sentenced Appellant to the thirty year presumptive sentence on each of her attempted murder convie-tions. The sentences were ordered to be served concurrently. Appellant now claims that the composite thirty year term of imprisonment was manifestly unreasonable under the facts and circumstances here. Ind.R.App.Rev.Sen. II(1) provides that this Court will not adjust a sentence which is authorized by statute and which is not manifestly unreasonable in light of the nature of the offense and the character of the offender. Ind.R.App.Rev.Sen. II(2) further provides that a sentence is not manifestly unreasonable if any reasonable person could find the sentence appropriate for the particular offense and offender. The instant trial court gave the presumptive sentence set by the Legislature and therefore had no obligation to explain its reasons. A trial court must explain its reasons for sentencing only when the sentence it imposes is enhanced or reduced due to certain aggra
Finding no reversible error, we affirm the trial court in all things.
GIVAN, C.J., and DeBRULER, HUNTER and PRENTICE, JJ., concur.