MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                            Aug 31 2016, 9:39 am
this Memorandum Decision shall not be                                  CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf                                       Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Erique Raggs,                                            August 31, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         71A05-1510-CR-1831
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jerome Frese,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1409-MR-11



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016     Page 1 of 12
                                             Case Summary
[1]   Erique Raggs appeals his convictions for murder and attempted murder. We

      affirm.


                                                     Issue
[2]   The issues before us are:


              I.      whether there is sufficient evidence to support Raggs’s
                      convictions; and


              II.     whether the trial court properly instructed the jury
                      regarding the elements of attempted murder.


                                                     Facts
[3]   The evidence most favorable to the convictions is that, on September 13, 2014,

      Tony and Angela Shead had a small gathering at their house. Their guests

      included Angela’s sister, Debbie Wyche; Debbie’s fiancé, Lonnell Eggerson;

      Tony and Angela’s daughter, Antonisha Shead; Antonisha’s cousin, Dorothy

      Tyler; and Dorothy’s boyfriend, Raggs. Dorothy and Raggs offered to take the

      rest of the group out to a sports bar to watch a boxing match. Angela drove the

      group there in her and Tony’s van. While at the bar, Dorothy and Raggs got

      into an argument, and Raggs pulled Dorothy out of the bar. Tony attempted to

      calm Raggs down. Eventually, the group returned to the van, and Angela

      began driving to Dorothy’s grandmother’s house in South Bend, where

      Dorothy lived, because of the difficulties Raggs was causing. In the van,



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      Dorothy and Raggs continued arguing, and Debbie attempted to intervene to

      calm Raggs down.


[4]   Angela dropped Dorothy and Raggs off at Dorothy’s grandmother’s house,

      where Dorothy’s cousin Marquis Scott also was staying. Tony, Angela,

      Debbie, Lonnell, and Antonisha stayed parked outside the house in the van and

      did not immediately drive away. After two to three minutes, Dorothy came

      running out of the house, screaming “he’s trying to kill me.” Tr. p. 88. Raggs

      was following Dorothy out of the house, and Marquis was following Raggs. In

      the house, Marquis had been trying to calm Raggs down, and Raggs had

      pushed Marquis. Outside, Raggs pushed Dorothy to the ground and was on

      top of her. Marquis pulled Raggs off of Dorothy, and the two briefly wrestled.


[5]   The occupants of the van got out to break up the fight between Marquis and

      Raggs. Antonisha eventually managed to break up the fight. Raggs did not

      appear to be injured, and he and Antonisha walked down the street, separating

      themselves from the rest of the group. Raggs told Antonisha that he did not

      have his cell phone, and she offered to go back to Dorothy’s grandmother’s

      house to retrieve it for him. After giving Raggs his cell phone, Antonisha

      walked back to the van, where the group gathered to leave because they were

      afraid of Raggs. Angela was in the driver’s seat, and Tony was in the front

      passenger seat. Debbie sat behind Tony, and Lonnell sat behind Angela.

      Antonisha and Dorothy were in the van’s third row. Marquis was going to

      follow the van in his own car. Before driving away, Dorothy realized she had



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      forgotten to lock up her grandmother’s house, and she and Antonisha started to

      get out of the van to do so.


[6]   As Dorothy was preparing to exit the van, Raggs approached it with a drawn

      handgun that appeared to be a Glock nine millimeter. Raggs first pointed the

      gun at Marquis, then approached the van when he saw Dorothy in it. Raggs

      looked into the van with the gun pointed and said, “you mother f***ers talk

      s***, what you gonna say now?” Tr. p. 292. Tony then put the van into gear

      for Angela and she began driving away, with the side door still open. Raggs

      began firing into the van when he was still standing directly next to it, mere

      inches away, and continued firing until the chamber was empty. He continued

      pulling the trigger even after it was empty.


[7]   After driving a short distance, Angela pulled over when it was apparent that

      Tony had been shot. A bullet had entered Tony’s right side and pierced his

      liver, right lung, heart, and aorta, killing him. Additionally, Dorothy was shot

      in the right hip and abdomen, but she survived.


[8]   On September 15, 2014, the State charged Raggs with murder, Level 1 felony

      attempted murder, and Level 3 felony aggravated battery; the State later

      dismissed the aggravated battery charge. Raggs fled to Chicago after the

      shooting, taking the gun with him, and he was not arrested until October 21,

      2014, in Chicago. After being apprehended and questioned by police, Raggs

      denied shooting at the van and denied even being present at the time, claiming

      he had left the area after the fight with Marquis and had not returned. While


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      incarcerated awaiting trial, Raggs approached two inmates and asked them to

      provide alibis for him, but they did not do so. The murder weapon was never

      found. However, Raggs told one of the inmates that he used a nine millimeter

      to carry out the shooting.


[9]   At Raggs’s jury trial, the trial court read the charging information to the jury as

      part of its preliminarily instructions. Regarding attempted murder, the

      information alleged:


              On or about September 14, 2014, in St. Joseph County, State of
              Indiana, Erique Raggs did intentionally attempt to commit the
              crime of Murder by shooting at Dorothy Tyler, which conduct
              constituted a substantial step toward the commission of the crime
              of Murder, which is to knowingly kill another human being.


      Id. at 40. The trial court repeated the language of the charging information to

      the jury during final instructions. It also instructed the jury on the definitions of

      “knowingly” and “intentionally.” The trial court further instructed the jury as

      follows:

              To convict the defendant Erique Raggs of Count II, Attempted
              Murder, Level 1 felony, the State must have proved each of the
              following essential elements beyond a reasonable doubt:


              One, the defendant Erique Raggs; two, acting with the specific
              intent to kill Dorothy Tyler; three, shot at Dorothy Tyler; four,
              which was conduct constituting a substantial step toward
              commission of the intended crime of murder.




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               If the State failed to prove any one or more of these elements
               beyond a reasonable doubt, you must find the defendant not
               guilty of Count II, Attempted Murder, Level 1 felony.


       Id. at 559-60. Raggs did not object to the trial court’s instructions.


[10]   During closing argument, the prosecutor discussed the concept of “specific

       intent to kill” with the jury:


               With the Murder charge we talked about knowingly. With the
               Attempted Murder charge we need to talk about specific intent.
               That’s the language in an Attempted Murder charge.


               Why? Because if somebody is attempting to kill somebody, how
               do you really know that they want them dead? The law wants to
               be really sure that there’s enough evidence for you to know that
               they wanted them—they were actually trying to kill him. They
               want you to take a good hard look at that and make sure that
               there’s enough evidence to show that that was his intent. It’s a
               step above knowingly actually.


               A person engages in conduct intentionally if when he engages in
               that conduct it is his conscious objective to do so. Conscious
               objective. It’s what you want to do. You’re not just aware of a
               high probability that you’re doing so. That’s your aim.


               With a specific intent to kill Dorothy Tyler.


               Ladies and gentlemen, the specific intent to kill may be formed as
               instantaneously as pulling the trigger. The defendant tried until
               he ran out of bullets. The gun was clicking. He did it fast. The
               only thing that saved Dorothy Tyler was the fact that, A, Angela
               drove away, and, B, that the defendant didn’t get a lucky shot at
               her. It wasn’t a fatal wound.
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       Id. at 528-29. As for Raggs, his attorney’s closing argument consisted solely of

       a denial that he was the gunman and that he was not present at the time of the

       shooting.


[11]   The jury found Raggs guilty of both murder and attempted murder. The trial

       court entered convictions and sentenced him accordingly. Raggs now appeals.


                                                      Analysis
                                          I. Sufficiency of the Evidence

[12]   Raggs first questions whether there is sufficient evidence to support his

       convictions for murder and attempted murder. When reviewing a claim of

       insufficient evidence we neither reweigh the evidence nor judge the credibility

       of the witnesses. Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 2016). We will

       consider only the evidence and reasonable inferences therefrom that support the

       conviction. Id. We will affirm if there is probative evidence from which a

       reasonable fact-finder could have found the defendant guilty beyond a

       reasonable doubt. Id.


[13]   Raggs specifically contends there was insufficient evidence of his mens rea with

       respect to killing Tony and attempting to kill Dorothy.1 In order to convict

       Raggs of murder as charged, the State had to prove that he knowingly or

       intentionally killed Tony. See Ind. Code § 35-42-1-1(1). In order to convict




       1
           On appeal, Raggs makes no attempt to argue that he did not shoot Tony and Dorothy.


       Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016   Page 7 of 12
       Raggs of the attempted murder of Dorothy, the State was required to prove

       that, acting with the specific intent to kill, he engaged in conduct that was a

       substantial step toward such killing. Rosales v. State, 23 N.E.3d 8, 11-12 (Ind.

       2015) (quoting Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991)). The

       heightened requirement of proof of specific intent to kill in attempted murder

       cases is based upon the stringent penalties for attempted murder and

       ambiguities often involved in proving such a charge. Id. at 12 (quoting Hopkins

       v. State, 759 N.E.2d 633, 637 (Ind. 2001)). Thus, although the State only was

       required to prove that Raggs knowingly killed Tony, it was required to prove

       that he shot Dorothy with the specific intent to kill her. We will focus our

       analysis upon whether there was sufficient evidence of Raggs’s intent to kill

       with respect to both Tony and Dorothy.


[14]   “A person engages in conduct ‘intentionally’ if, when he engages in the

       conduct, it is his conscious objective to do so.” I.C. § 35-41-2-2(a). A fact

       finder may infer specific intent to kill from the nature of an attack and the

       circumstances surrounding the crime. Kiefer v. State, 761 N.E.2d 802, 805 (Ind.

       2002). Such intent may be inferred from the use of a deadly weapon in a

       manner likely to cause death or great bodily harm. Id. A defendant’s motive to

       kill, or lack thereof, also is a factor that may be considered, though motive is

       not an element of the crime. Id. at 806. Discharging a weapon in the direction

       of a victim is substantial evidence from which a fact finder could infer intent to

       kill. Corbin v. State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006). Where

       discharge of a firearm is concerned, the distance between the defendant and

       Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016   Page 8 of 12
       victim is also a relevant consideration in determining whether the defendant

       specifically intended to kill the victim. See Richeson v. State, 704 N.E.2d 1008,

       1010 (Ind. 1998). The State need not prove that the defendant intended to kill

       the actual victim, but only that the defendant intended to kill someone. Blanche

       v. State, 690 N.E.2d 709, 712 (Ind. 1998) (citing Straub v. State, 567 N.E.2d 87,

       90-91 (Ind. 1991)).


[15]   Here, there is no evidence Raggs expressly stated that he intended to kill Tony

       or Dorothy, or anyone for that matter. Regardless, we believe there is ample

       circumstantial evidence from which the jury could have concluded that Raggs

       specifically intended to kill both of them. Raggs had been arguing with

       Dorothy and others in the group for some time prior to the shooting.

       Immediately prior to the shooting, Raggs’s behavior was such that Dorothy felt

       her life was threatened, and he was involved in a physical fight with Marquis.

       Raggs approached the van, pointing a firearm at members of the group as they

       were preparing to leave, yelling profanities, and asking, “what you gonna say

       now?” Tr. p. 292. Raggs looked into the van, then opened fire into it when he

       was standing mere inches away. Raggs continued firing as Angela drove away

       until the gun’s chamber was empty, and he continued pulling the trigger

       thereafter. Given the circumstances leading up to the shooting, Raggs’s

       statements immediately beforehand, his proximity to the van when he began

       shooting, and his firing of multiple shots directly into the van, there is sufficient

       evidence Raggs specifically intended to shoot and kill both Tony and Dorothy;

       the other occupants of the van were fortunate not to have been struck by any


       Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016   Page 9 of 12
       bullets. Thus, there is sufficient evidence to support Raggs’s convictions for

       murder and attempted murder.


                                             II. Jury Instructions

[16]   Next, Raggs contends the trial court committed fundamental error in

       instructing the jury on the elements of attempted murder. The manner of

       instructing a jury is largely within the trial court’s discretion, and we will

       reverse a conviction based on alleged instructional error only for an abuse of

       that discretion. Rosales, 23 N.E.3d at 11. When a defendant fails to object to

       alleged instructional error, he or she must establish that the trial court’s error

       was fundamental before we will reverse. Id. “Fundamental error ‘is a

       substantial, blatant violation of due process’ that ‘must be so prejudicial to the

       rights of a defendant as to make a fair trial impossible.’” Id. (quoting Hopkins,

       759 N.E.2d at 638).


[17]   A proper instruction for attempted murder must inform the jury that in order to

       convict the defendant, the State is required to prove beyond a reasonable doubt

       that the defendant, acting with intent to kill the victim, engaged in conduct that

       was a substantial step toward such killing. Spradlin, 569 N.E.2d at 950. It is

       erroneous to instruct a jury that it can convict a defendant of attempted murder

       based upon a “knowing” mens rea, and such error may amount to fundamental

       error. Ramsey v. State, 723 N.E.2d 869, 872 (Ind. 2000). An erroneous

       reference to a “knowing” mens rea in an attempted murder instruction may not

       be fundamental if (1) the intent of the perpetrator was not a central issue at trial;

       (2) the instructions as a whole sufficiently suggested the requirement of intent to
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       kill; or (3) both. Williams v. State, 737 N.E.3d 734, 737 (Ind. 2000). Another

       relevant consideration is whether the State relied upon the erroneous

       instructional language during arguments before the jury. See Rosales, 23 N.E.3d

       at 15-16 (holding erroneous accomplice liability attempted murder instructions

       may not have amounted to fundamental error if the State had not repeatedly

       relied upon the erroneous language during closing argument).


[18]   Here, Raggs notes that the jury instructions twice referred to a “knowing” mens

       rea for attempted murder, versus once correctly reciting the requirement of

       specific intent to kill. We do not believe the mere fact that “knowing” was

       twice used erroneously amounts to fundamental error. To the extent there was

       error in the trial court’s instructions regarding attempted murder, it was solely

       through re-reading of the charging information language in both the

       preliminary and final instructions. When more precisely detailing the elements

       of attempted murder and what the State had to prove in order to obtain a

       conviction, the language used by the trial court correctly paralleled Spradlin’s

       requirements. The instructions as a whole informed the jury of the proper mens

       rea needed to support a conviction for attempted murder.


[19]   Furthermore, although Raggs challenges the sufficiency of the evidence of his

       mens rea on appeal, he did not do so at trial. Instead, his defense focused solely

       upon identity and whether he was even the shooter. Thus, the intent of the

       perpetrator was not a central issue at trial. Finally, during closing argument,

       rather than relying on the erroneous instructional language, the prosecutor

       instead made it clear to the jury that it had to find Raggs specifically intended to

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       kill Dorothy, that a “knowing” mens rea was insufficient, and thoroughly

       explained to the jury the difference between “knowing” and “intentional”

       conduct. Given the circumstances here, we cannot say that the erroneous

       reference to a “knowing” mens rea in two of the jury instructions, taken from

       the language of the charging information, amounted to fundamental error.


                                                 Conclusion
[20]   There is sufficient evidence to support Raggs’s convictions for both murder and

       attempted murder, and the reference to a “knowing” mens rea in two of the jury

       instructions related to attempted murder did not amount to fundamental error.

       We affirm.


[21]   Affirmed.


[22]   Vaidik, C.J., and Mathias, J., concur.




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