MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
                                                                           FILED
this Memorandum Decision shall not be                                 Apr 26 2016, 9:31 am

regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              Court of Appeals
                                                                            and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Gregory F. Zoeller
Brownsburg, Indiana                                      Attorney General of Indiana
                                                         Ian McClean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph Hale,                                             April 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1510-CR-1642
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Stanley E. Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1504-F5-14719



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016          Page 1 of 7
[1]   Joseph Hale (“Hale”) was convicted in Marion Superior Court of Level 1

      felony attempted murder. Hale was ordered to serve thirty-five years in the

      Department of Correction. Hale appeals and argues that the State failed to

      present sufficient evidence to support his Level 1 felony attempted murder

      conviction.


[2]   We affirm.

                                         Facts and Procedural History


[3]   Around 2:30 p.m. on April 24, 2015, Hale entered a Sunoco gas station in

      Indianapolis, Indiana, to purchase a beverage and some gasoline. As Hale

      stood in line to pay for these items, Kristopher Haskins (“Haskins”) entered the

      store with his girlfriend. Haskins approached Hale, and the men argued.1 After

      paying the attendant, Hale exited the store followed by Haskins. The men

      began arguing again near the gas pumps. This time, Haskins hit Hale in the

      head, and Hale responded by throwing a bottle at Haskins’ head. Hale then

      pulled out a handgun, chased Haskins, and fired five shots at him.2 Haskins ran

      across the street toward a nearby school uninjured and left the scene.3 The




      1
        We are unsure of the nature of the dispute but attribute the hostility between the two men to Haskins’
      relationship with Hale’s ex-girlfriend, Bryann, who was pregnant at the time of the incident.
      2
          Hale was only a few feet away from Haskins as he fired.
      3
       Detective Kevin Kern (“Detective Kern”) later located Haskins and tried to interview him. However,
      Haskins would not answer questions related to the April 24, 2015 incident.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016              Page 2 of 7
      entire dispute was captured on surveillance cameras, except for about a ten

      second portion of the fight where both men stepped out of the camera’s range.

[4]   While this incident occurred, Officer Matthew Thomas (“Officer Thomas”) was

      out on his patrol shift and stopped at an intersection where he could see the

      Sunoco gas station. He observed two men involved in “some sort of

      disturbance.” Tr. p. 41. As Officer Thomas pulled into the gas station, Hale

      stopped shooting, but Officer Thomas saw Hale place his hands in a trash can

      near a gas pump. Officer Thomas then ordered Hale to the ground and arrested

      him.


[5]   After the incident, other officers responded to the scene and investigated the

      Sunoco parking lot. Officer Thomas looked in the trash can where Hale had

      placed his hands and found a .380 caliber semiautomatic pistol and a .22 caliber

      revolver. Additionally, officers found five .380 caliber cases along with one live

      round of the same caliber on the ground. It was later determined that the

      revolver contained six unfired .22 caliber rounds. Although no one was injured

      or killed during the incident, officers discovered that one of Hale’s shots hit the

      back panel of a vehicle parked at a gas pump.

[6]   On April 28, 2015, the State charged Hale with Level 5 felony attempted

      battery by means of a deadly weapon, two counts of Level 5 felony criminal

      recklessness, and two counts of Level 5 felony carrying a handgun without a

      license. On May 19, 2015, the State amended the information by adding a Level

      1 felony attempted murder charge and a habitual offender allegation. The State


      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016   Page 3 of 7
      later dismissed the attempted battery by means of a deadly weapon charge

      along with one count of criminal recklessness and one count of carrying a

      handgun without a license.


[7]   While in jail, Hale made several calls to his “brother” from the jail phone that

      were recorded. In one of the calls, Hale admitted to “tryna whack4 yellow boy”5

      and asked his brother to contact a man named Rodney to ensure that Haskins

      did not appear to testify at a deposition or at the trial. In another call, Hale told

      his “brother” that on the day of the shooting he “went over there, bought that

      heater.”6 The transcript of these phone calls was admitted into evidence at trial.

      Ex. Vol., State’s Ex. 33.

[8]   A jury trial was held on September 3 and 4, 2015. The jury found Hale guilty of

      Level 1 felony attempted murder, Level 5 felony criminal recklessness, and

      Level 5 felony carrying a handgun without a license. However, the jury did not

      find Hale to be a habitual offender. The trial court then granted the State’s

      motion to dismiss the criminal recklessness and carrying a handgun without a

      license charges on September 22, 2015. That same day, a sentencing hearing

      was held, and the trial court ordered Hale to serve thirty-five years in the

      Department of Correction. Hale now appeals.




      4
       “Whack” is a street term which means “to hit” or “to assassinate.” See http://www.merriam-
      webster.com/dictionary/whack
      5
          Yellow boy is one of Haskins’ nicknames.
      6
          Heater is a slang term for a gun. See http://www.dictionary.com/browse/heater?s=t

      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016         Page 4 of 7
                                          Discussion and Decision


[9]    Hale argues that the Level 1 felony attempted murder conviction was not

       supported by sufficient evidence. “Upon a challenge to the sufficiency of

       evidence to support a conviction, a reviewing court does not reweigh the

       evidence or judge the credibility of witnesses, and respects the jury’s exclusive

       province to weigh conflicting evidence. Montgomery v. State, 878 N.E.2d 262,

       265 (Ind. Ct. App. 2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005)). We consider only probative evidence and reasonable inferences

       supporting the verdict. Id. We must affirm if the probative evidence and

       reasonable inferences drawn from the evidence could have allowed a reasonable

       trier of fact to find the defendant guilty beyond a reasonable doubt. Id.


[10]   Hale was charged with: “attempt[ing] to commit the crime of Murder, which is

       to knowingly kill another human being, namely Kristopher Haskins, by

       engaging in conduct, that is: shooting a deadly weapon, that is: a handgun, at

       and against the person of Kristopher Haskins with the intent to kill Kristopher

       Haskins, which conduct constituted a substantial step toward the commission

       of said crime of Murder.” Appellant’s App. p. 33.

[11]   Attempted murder occurs when a person “engages in conduct that constitutes a

       substantial step toward the commission” of “intentionally kill[ing] another

       human being.” Ind. Code § 35-41-5-1 (attempt); 35-42-1-1(murder). Our

       supreme court has held that before a person can be convicted of attempted

       murder that he must act with specific intent to kill. See Spradlin v. State, 569


       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016   Page 5 of 7
       N.E.2d 948, 949 (Ind. 1991). Intent to kill may be inferred from the deliberate

       use of a deadly weapon in a manner likely to cause death or serious injury.

       Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011) (citing Bethel v. State,

       730 N.E.2d 1242, 1245 (Ind. 2000)). Discharging a weapon in the direction of

       victim is substantial evidence from which a jury may infer intent to kill. Id.

       (citing Fry v. State, 885 N.E.2d 742, 750 (Ind. Ct. App. 2008)).


[12]   Hale contends that the State failed to prove that Hale had the specific intent to

       kill Haskins. He specifically argues that he was trying to “scare” Haskins

       because he only shot in Haskins’ direction. However, the State presented

       testimony from Officer Thomas that he heard gunfire and observed Hale

       chasing Haskins through the Sunoco parking lot while firing a gun. Tr. p. 43.

       Further, the State admitted into evidence a surveillance video from the gas

       station parking lot that shows Hale running closely after Haskins while firing

       shots at him.


[13]   Hale relies on his own testimony that Haskins was threatening him and then

       “smacked” him in the head. Tr. p. 137. Hale also testified that Haskins had a

       gun and that he disarmed him when the two men were out of the surveillance

       camera’s range. He further stated that he was scared of Haskins. However, the

       jury did not find that Hale acted in self-defense, and that issue was not raised on

       appeal.

[14]   Further, Hale admitted at trial to “pointing the gun and shooting at [Haskins]”

       while Haskins was unarmed and running away from him across the street.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016   Page 6 of 7
       Because Hale discharged the gun in Haskins’s direction, the jury could

       reasonably infer from Hale’s conduct alone that Hale had the specific intent to

       kill Haskins. We respect the jury’s discretion on this issue. See McHenry, 820

       N.E.2d at 126. For all of these reasons, we conclude that the State presented

       sufficient evidence to support Hale’s Level 1 felony attempted murder

       conviction.

[15]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016   Page 7 of 7
