      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                  FILED
      court except for the purpose of establishing                          Sep 05 2017, 5:57 am

      the defense of res judicata, collateral                                    CLERK
      estoppel, or the law of the case.                                      Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Philip R. Skodinski                                      Curtis T. Hill, Jr.
      South Bend, Indiana                                      Attorney General of Indiana
                                                               Majorie Lawyer-Smith
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Michael J. Smith,                                        September 5, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               71A05-1608-CR-1883
              v.                                               Appeal from the St. Joseph
                                                               Superior Court
      State of Indiana,                                        The Honorable Elizabeth C.
      Appellee-Plaintiff.                                      Hurley, Judge
                                                               Trial Court Cause No.
                                                               71D08-1509-F5-188



      Mathias, Judge.


[1]   After a jury trial in St. Joseph Superior Court, Michael J. Smith (“Smith”) was

      convicted of one count of Level 1 felony attempted murder and three counts of


      Court of Appeals of Indiana | Memorandum Decision 71A05-1608-CR-1883 | September 5, 2017       Page 1 of 11
      Level 5 felony criminal recklessness. In this appeal, Smith claims the evidence

      was insufficient to support his conviction for attempted murder and that the

      trial court abused its discretion by refusing tendered self-defense jury

      instruction.


[2]   We affirm.



                                 Facts and Procedural Posture

[3]   Around 2:30 am on August 1, 2015, three vehicles pulled into the Always Open

      gas station located at the northwest corner of Lafayette and LaSalle streets (“the

      Intersection”) in South Bend, Indiana. First to pull in was a lime green GMC

      Suburban driven by Stephen Johnson (“Stephen”). Stephen’s brother Justin

      Sharp (“Sharp”) sat in the passenger seat, and a friend Marcus Harris (“Harris”)

      sat behind Justin. Following the Suburban was a tan Chevy Tahoe driven by

      Bryant Johnson1 (“Bryant”). Finally, a white Mitsubishi Lancer driven by

      Herneisha Becton (“Becton”) entered the gas station. Ashley Irving (“Irving”)

      sat in the passenger seat of the Lancer, while Michael Smith (“Smith”),

      Bryant’s brother, sat in the back seat.


[4]   Stephen exited the Suburban and entered the gas station for about ten minutes

      while Sharp and Harris stayed inside the vehicle. During this time, the Tahoe

      and Lancer were parked off to the side in the gas station lot. Bryant called



      1
          There is no indication in the record that Stephen Johnson and Bryant Johnson are related.


      Court of Appeals of Indiana | Memorandum Decision 71A05-1608-CR-1883 | September 5, 2017        Page 2 of 11
      Becton who put the call on speaker. Becton, Irving, and Smith listened as

      Bryant asked, “was that the guy?” Tr. Vol. II, p. 147. Smith responded, “if that

      was him, then we need to handle business.” Id. at 148.


[5]   Stephen returned to the Suburban and as he began to drive out of the gas station

      and head south on Lafayette, he noticed that the Tahoe pulled out at the same

      time, so he stopped and let the Tahoe exit first. The Tahoe driven by Bryant

      made a right-hand turn out of the gas station, pulled up to the Intersection, and

      stopped at the light in the right-hand lane. The Suburban driven by Stephen

      pulled up next to the Tahoe in the left-hand turn lane. The Lancer driven by

      Becton pulled up directly behind the Suburban.


[6]   At this point, Bryant, the driver of the Tahoe, rolled down his window and fired

      six shots into the passenger side of the Suburban before speeding off to the right,

      heading west on LaSalle. Stephen, attempting to flee, turned hard to the left,

      but due to the sharp turn and the size of the wheel rims on the Suburban, the

      vehicle momentarily became immobile. He was also leaning out of the vehicle

      attempting to avoid the gunfire. The Becton-driven Lancer then entered the

      intersection, and once there, Smith fired five shots at the rear of the Suburban

      out of the Lancer’s driver side, back-passenger window. The second round of

      gunfire spurred Stephen to fully re-enter the Suburban, correct the wheels, and

      drive off east on LaSalle. The Becton-driven Lancer followed the Bryant-driven

      Tahoe to Bryant’s sister’s home where Smith stated, “I think I killed him.” Id.

      at 154.



      Court of Appeals of Indiana | Memorandum Decision 71A05-1608-CR-1883 | September 5, 2017   Page 3 of 11
[7]   Stephen, realizing both he and his brother had been shot, quickly turned the

      Suburban around and returned to the gas station. Sharp, who was sitting in the

      passenger seat, had been shot multiple times, and he was pronounced dead at

      the scene. Stephen suffered a bullet wound to his right shoulder and Harris was

      unhurt.


[8]   On September 2, 2015, the State charged Smith in three counts: Count I, Level

      5 felony criminal recklessness against Harris; Count II, Level 5 felony criminal

      recklessness against Stephen; and Count III, Level 5 felony criminal

      recklessness against Sharp. On May 16, 2016, the State added Count IV, Level

      1 felony attempted murder against Stephen. A three-day jury trial commenced

      on June 14, 2016. Prior to final arguments, Smith requested a jury instruction

      for self-defense. After consideration, the trial court refused to give the offered

      instruction.


[9]   The jury found Smith guilty on all four counts. On July 19, 2016, the court

      merged Count II and Count IV and sentenced Smith to 38 years executed in the

      department of corrections for attempted murder, 5 years executed in the

      department of corrections for criminal recklessness to run consecutively, and a

      5-year suspended sentence to probation following release. Smith now timely

      appeals.




      Court of Appeals of Indiana | Memorandum Decision 71A05-1608-CR-1883 | September 5, 2017   Page 4 of 11
                                      Discussion and Decision

[10]   Smith presents two issues for our review: whether the evidence was sufficient to

       support his conviction for attempted murder; and whether the trial court abused

       its discretion by refusing to give the self-defense instruction to the jury.


                    The Evidence was Sufficient to Support Smith’s Conviction

[11]   When reviewing a claim of insufficient evidence to sustain a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016). It is the jury’s role, not

       ours, to assess witness credibility and weigh the evidence to determine whether

       it is sufficient to support a conviction. Id. We will affirm the conviction unless

       no reasonable fact-finder could have found the elements of the crime proven

       beyond a reasonable doubt. Id.


[12]   For attempted murder, the State needed to prove, beyond a reasonable doubt,

       that Smith engaged in conduct constituting a substantial step toward

       intentionally killing Stephen. See Ind. Code §§ 35-41-5-1, 35-42-1-1. Our courts

       have consistently “held that intent to commit murder may be inferred from the

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

       injury.” Booker v. State, 741 N.E.2d 748, 755 (Ind. Ct. App. 2000) (emphasis in

       original) (citing Chapman v. State, 719 N.E.2d 1232, 1234 (Ind. 1999)). The use

       of a deadly weapon on its own may not suffice to satisfy the specific intent

       requirement, however, “the trier of fact may infer that the defendant acted with

       conscious objective to kill from the circumstances surrounding the deliberate

       Court of Appeals of Indiana | Memorandum Decision 71A05-1608-CR-1883 | September 5, 2017   Page 5 of 11
       use” of the deadly weapon. Id. at 756. Discharging a weapon in the direction of

       a victim is substantial evidence from which a jury could infer a specific intent to

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

       State, 525 N.E.2d 331, 332 (Ind. 1988)).


[13]   In Perez v. State, the defendant fired three to five rounds out of his moving Acura

       towards a Chevy Malibu. 872 N.E.2d 208, 210 (Ind. Ct. App. 2007), trans.

       denied. After the shots were fired, the defendant discussed the shooting and told

       others he was sure he had hit the car. Id. On appeal, the defendant argued that

       there was insufficient evidence to show he had intended to kill the driver of the

       Malibu. Id. at 212. In Perez, we upheld the attempted murder conviction finding

       there was substantial evidence for the jury to conclude the defendant’s

       conscious objective was to kill when he fired at the moving vehicle. Id. at 213.


[14]   Perez is analogous to the situation before us here. Smith contends that the shots

       he fired at the Suburban were not likely to result in murder because the vehicles

       were traveling in opposite directions. Appellant’s Br. at 8–9. However, the

       record does not support this argument, nor would this fact be dispositive if it

       did. While all three vehicles were at the gas station, and just after Stephen

       exited the Suburban, Bryant made a phone call to Becton in the Lancer asking,

       “was that the guy?” Tr. Vol. II, p. 147. Smith then responded, “if that was him,

       then we need to handle business.” Id. at 148. Driving their respective vehicles

       out of the gas station, Bryant and Becton pulled up alongside and behind the

       Suburban at the Intersection. Bryant then fired six shots into the passenger side

       of the Suburban and Stephen attempted to turn left and flee. Before Stephen

       Court of Appeals of Indiana | Memorandum Decision 71A05-1608-CR-1883 | September 5, 2017   Page 6 of 11
       was able to flee, Smith fired five shots from the Lancer towards Stephen and the

       Suburban while both vehicles were in the intersection.2 Just after the shooting,

       once Bryant and Smith reconvened, Smith stated, “I think I killed him.” Tr.

       Vol. II, p. 154.


[15]   For these reasons, there was substantial evidence to support Smith’s attempted

       murder conviction.


       The Trial Court Did Not Abuse its Discretion when it Refused to Give Smith’s
                      Tendered Self-Defense Instruction to the Jury

[16]   The trial court has broad discretion in how it instructs a jury and we review its

       discretion only for abuse. McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015).

       “To determine whether a jury instruction was properly refused, we consider: (1)

       whether the tendered instruction correctly states the law; (2) whether there was

       evidence presented at trial to support giving the instruction; and (3) whether the

       substance of the instruction was covered by other instructions that were given.”

       Id. at 763–64. The second element listed above is most applicable to the case

       before us which our supreme court has at times rephrased as “whether there

       was evidence to render the instruction applicable to the issues.” Hoskins v. State,

       737 N.E.2d 383, 385 (Ind. 2000) (citing Williams v. State, 481 N.E.2d 1319, 1322

       (Ind. 1985)). This description by the court proves helpful for our analysis here.




       2
        It is immaterial that none of the shots actually struck Stephen. See Corbin v. State, 840 N.E.2d 424, 429 (Ind.
       Ct. App. 2006) (holding there is no requirement that shots fired actually strike the intended victim for the
       attempted murder statutes to be triggered).

       Court of Appeals of Indiana | Memorandum Decision 71A05-1608-CR-1883 | September 5, 2017            Page 7 of 11
[17]   A defendant in a criminal case is entitled to have the jury instructed on any

       theory of defense as long as it has some basis in the evidence. Creager v. State,

       737 N.E.2d 771, 777 (Ind. Ct. App. 2000), trans. denied. It does not matter

       whether the evidence is weak or even inconsistent; however, the evidence at

       trial must provide some probative value to support providing the instruction. Id.

       Three facts must be proven when a defendant claims self-defense: 1) that he was

       in a place where had a right to be; 2) that he acted without fault; and 3) that he

       had reasonable fear or apprehension of death or great bodily harm. Miller v.

       State, 720 N.E.2d 696, 700 (Ind. 2000). Further, self-defense is not appropriate

       for a defendant who is the initial aggressor except in limited circumstances,

       which are inapplicable here. Id.


[18]   Smith tendered the following instruction to the trial court:


               I.C. 35-41-3-2 defines “self-defense” as follows:

               A person is justified in using reasonable force against any other
               person to protect the person or a third person from what the
               person reasonably believes to be the imminent use of unlawful
               force.

               A person:

               (1) is justified in using deadly force; and

               (2) does not have a duty to retreat:

               if the person reasonably believes that force is necessary to prevent
               serious bodily injury to the person or a third person or the
               commission of a forcible felony. No person in this state shall be
               placed in legal jeopardy of any kind whatsoever for protecting the
               person or a third person by reasonable means necessary.

               However, a person is not justified in using force if:

       Court of Appeals of Indiana | Memorandum Decision 71A05-1608-CR-1883 | September 5, 2017   Page 8 of 11
         (1) the person is committing or escaping after the commission of
             a crime;

         (2) provokes unlawful action by another person, with intent to
             cause bodily injury to the other person; or

         (3) the person has entered into combat with another person or is
             the initial aggressor unless the person withdraws from the
             encounter and communicates to the other person the intent to
             do so and the other person nevertheless continues or threatens
             to continue unlawful action. Use of force disproportionate to
             necessity exceeds the bounds of justifiable force.

         “Deadly force” is force that creates a substantial risk of serious
         bodily injury.

         “Bodily injury” means any impairment of physical condition
         including physical pain.

         “Serious bodily injury” means bodily injury that creates a
         substantial risk of death or that causes: serious permanent
         disfigurement, unconsciousness, extreme pain, permanent or
         protracted loss or impairment of the function of a bodily member
         or organ, or the loss of a fetus.

         The State has the burden of proving beyond a reasonable doubt
         that the Defendant did not act in self-defense. Self-defense may
         be disproved by the State either by producing additional evidence
         specifically disproving one of the elements of self-defense or by
         the evidence taken as a whole.


Appellant’s App. Vol. II, pp. 20–21. Smith argued that the instruction was

justified because Irving testified that when Stephen exited the Suburban, she

was afraid he might shoot.3




3
 There is conflicting testimony here as Stephen testified he never fully exited the Suburban, Tr. Vol. II, p.
130, and when confronted with conflicting evidence we consider it most favorably to the ruling of the trial
court. Dalton v. State, 56 N.E.3d 644, 647 (Ind. Ct. App. 2016), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 71A05-1608-CR-1883 | September 5, 2017            Page 9 of 11
[19]   After due consideration, the trial court refused to give the tendered instruction

       and reasoned in part, “I did not believe there was, as required by case law,

       evidence on the record to support the requirement that the defendant himself

       would have foreseen some threat or some imminent bodily harm that would

       have led to then him acting in self-defense.” Final Statements Tr., p. 2. We

       agree.


[20]   Even though only a scintilla of evidence is necessary to support providing a self-

       defense instruction, there is no evidence that Smith faced any fear or

       apprehension of bodily harm at any point. Additionally, Smith acted as an

       aggressor. Three witnesses testified at trial that there was no contact between

       the occupants of the Suburban and those in the other two vehicles prior to the

       first shots being fired. Tr. Vol. II, pp. 120, 141, 161. Also, there is no evidence

       that any of the occupants of the Suburban were carrying firearms at the time of

       the shooting. Id. at 26, 123-24, 138–39. Smith was never in danger and

       “[a]bsent evidence of impending danger, a self-defense instruction is not

       proper.” White v. State, 726 N.E.2d 831, 834 (Ind. Ct. App. 2000), trans. denied.

       Therefore, we conclude that the trial court did not abuse its discretion when it

       refused to give the jury Smith’s tendered instruction regarding self-defense.


                                                 Conclusion

[21]   Considering the evidence favorable to the jury’s verdict, we conclude that the

       State presented sufficient evidence to support Smith’s attempted murder



       Court of Appeals of Indiana | Memorandum Decision 71A05-1608-CR-1883 | September 5, 2017   Page 10 of 11
       conviction. Further, the trial court did not abuse its discretion when it refused

       to give the jury Smith’s tendered instruction regarding self-defense.


[22]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1608-CR-1883 | September 5, 2017   Page 11 of 11
