MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Mar 06 2018, 9:59 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark A. Thoma                                            Curtis T. Hill, Jr.
Leonard, Hammond, Thoma & Terrill                        Attorney General of Indiana
Fort Wayne, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Willie L. Amos,                                          March 6, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1710-CR-2304
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff                                       Jr., Judge
                                                         Trial Court Cause No.
                                                         02D04-1608-F1-13



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2304 | March 6, 2018             Page 1 of 8
                                             Case Summary
[1]   Willie L. Amos (“Amos”) challenges his conviction for Attempted Murder, a

      Level 1 felony.1 He presents the sole issue of whether the trial court abused its

      discretion when it refused to instruct the jury on Battery with a Deadly

      Weapon, a Level 5 felony.2 We affirm.



                                    Facts and Procedural History
[2]   Amos and Rosita York (“York”) were involved in a romantic relationship that

      ended in April of 2016. After the break-up, York obtained a protective order

      against Amos. Nonetheless, Amos continued to contact and threaten York.


[3]   On August 23, 2016, Amos told York that he was planning to kill himself and

      York at York’s workplace. The next day, York drove to her mother’s house in

      Fort Wayne to drop off her young daughter. York’s daughter exited the vehicle

      and York remained inside, talking to Amos’s father on the cell phone. Amos’s

      father advised York, “Baby, just drive. Just drive.” (Tr. at 144.) York saw

      Amos’s vehicle pull up behind her, and she took off with Amos in pursuit.


[4]   York called 9-1-1 to report that Amos was chasing her and shooting at her

      vehicle. At the intersection of Harrison Street and Lexington Avenue, Amos




      1
       Ind. Code §§ 35-42-1-1, 35-41-5-1. He does not challenge his convictions for Unlawful Possession of a
      Firearm by a Serious Violent Felon, a Level 4 felony, I.C. § 35-47-4-5, or Dealing in a Schedule I Controlled
      Substance, as a Level 2 felony, I.C. § 35-48-4-2.
      2
          I.C. § 35-42-2-1(g)(2).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2304 | March 6, 2018               Page 2 of 8
      shot out the back window of York’s vehicle and rammed the vehicle such that it

      went over the curb and into a stop sign. Amos backed up and rammed York’s

      vehicle again, but York was able to drive away. When York turned onto

      Fairfield Avenue, Amos rammed York’s vehicle into a tree. He crashed his

      own vehicle into a fence.


[5]   In view of neighbors and other motorists, Amos crawled out of his vehicle

      window and retrieved his gun. York, screaming that Amos was going to kill

      her, ran to the back of her vehicle. As Amos headed toward York, Sashelle

      Rose yelled out “sir, please don’t do it.” (Tr. at 177.) Ann Conyers moved

      between Amos and York and placed her hands on Amos’s shoulders, begging

      him “please don’t do this.” (Tr. at 191.) Amos pushed Conyers aside.


[6]   Amos fired multiple shots at York. Two bullets struck her in the leg. York

      curled into a fetal position, face-down, and attempted to play dead. Amos

      approached York more closely and fired a shot into her left back. Amos then

      kicked York in the mouth and stomped on her head and back. Amos ran down

      Pasadena Drive, but was apprehended.


[7]   York was hospitalized for twenty-nine days; she endured multiple surgeries

      including the placement of a rod and pins in her leg. York suffered permanent

      scarring, numbness, and restricted movement.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2304 | March 6, 2018   Page 3 of 8
[8]    Amos was charged with Attempted Murder, Unlawful Possession of a Firearm

       by a Serious Violent Felon, and Dealing in a Schedule I Controlled Substance.3

       At the conclusion of a jury trial, he was convicted as charged. Amos was

       sentenced to forty years imprisonment for Attempted Murder, six years for the

       Unlawful Possession count, to be served consecutively, and seventeen years and

       183 days for the Dealing count, to be served concurrently. Thus, Amos

       received an aggregate sentence of forty-six years. He now appeals.



                                  Discussion and Decision
[9]    Prior to trial, Amos tendered a jury instruction on the offense of Battery with a

       Deadly Weapon, a Level 5 felony. He contended that the crime of Attempted

       Murder, as charged by the State in his case, included the offense of Battery.

       After hearing argument of counsel, the trial court refused the proffered

       instruction, finding no serious evidentiary dispute as to whether Amos intended

       to kill or batter York.


[10]   Instructing the jury lies within the sole discretion of the trial court. Carter v.

       State, 766 N.E.2d 377, 382 (Ind. 2002). When determining whether to give a

       lesser-included offense instruction, trial courts apply the three-part test set forth




       3
         This charge was based upon the discovery of a large amount of MDMA (commonly referred to as Ecstasy)
       in Amos’s vehicle.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2304 | March 6, 2018        Page 4 of 8
       by our Indiana Supreme Court in Wright v. State, 658 N.E.2d 563 (Ind. 1995).

       This test has been described as follows:


               The first two parts require the trial court to determine whether
               the offense is either inherently or factually included in the
               charged offense. If so, the trial court must determine whether
               there is a serious evidentiary dispute regarding any element that
               distinguishes the two offenses. … Where a trial court makes
               such a finding, its rejection of a tendered instruction is reviewed
               for an abuse of discretion.


       Wilson v. State, 765 N.E.2d 1265, 1271 (Ind. 2002) (citations, quotation, and

       footnote omitted).


[11]   If the evidence of record fails to support giving an instruction on an inherently

       or factually included lesser offense, the trial court should not give it to the jury.

       Wright, 658 N.E.2d at 567. When a trial court refuses a tendered lesser-

       included offense instruction on the merits, but the record does not provide a

       finding of no serious evidentiary dispute or a specific claim from the defendant

       as to the nature of the dispute, the standard of review is an abuse of discretion.

       Pinkston v. State, 821 N.E.2d 830, 840 (Ind. Ct. App. 2004), trans. denied. “The

       same is true if the trial court does make a finding that there is no serious

       evidentiary dispute.” Brown v. State, 703 N.E.2d 1010, 1020 (Ind. 1998).

       However, where the defendant at trial identifies a specific evidentiary dispute

       but the trial court does not make a Wright finding, de novo is the appropriate

       standard of review. Id.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2304 | March 6, 2018   Page 5 of 8
[12]   Amos was charged with Attempted Murder, which required proof that he, with

       intent to kill York, engaged in conduct which was a substantial step toward

       such killing. Richeson v. State, 704 N.E.2d 1008, 1009 (Ind. 1998). The

       elements of Battery with a Deadly Weapon are: knowingly or intentionally

       touching another person in a rude, insolent, or angry manner by means of a

       deadly weapon. I.C. § 35-42-2-1(g)(2); Matthews v. State, 476 N.E.2d 847, 849

       (Ind. 1985). Thus, Battery with a Deadly Weapon requires a touching.

       Because it is possible to attempt murder without touching the intended victim,

       Battery is not an inherently lesser-included offense of Attempted Murder. Leon

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


[13]   However, battery may be a factually included lesser offense to the charge of

       Attempted Murder. See Pinkston, 821 N.E.2d at 841 (Battery was a factually

       lesser-included offense of Attempted Murder where the charge was that the

       defendant “discharged a firearm at and/or against the body of [the victim].”)

       Here, the charging information for Count I alleged:


               Willie L. Amos did attempt to commit the crime of Murder, to
               wit: with intent to kill another human being, to wit: Rosita C.
               York, said Defendant engaged in conduct constituting a
               substantial step toward the commission of the crime of Murder,
               to wit: by discharging a firearm at or against the body of Rosita
               C. York[.]


       App. Vol. I at 20. Based upon this charging information, alleging touching by

       means of a firearm, Battery with a Deadly Weapon is a lesser included offense

       of Attempted Murder. Therefore, the trial court was obliged to consider

       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2304 | March 6, 2018   Page 6 of 8
       whether there was a serious evidentiary dispute regarding an element

       distinguishing the two offenses.


[14]   The distinguishing element is intent to kill. Amos claims that his intent was in

       dispute. We have observed, “The intent to kill may be inferred from the use of

       a deadly weapon in a manner likely to cause death or great bodily injury, in

       addition to the nature of the attack and circumstances surrounding the crime.”

       Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App. 2014), trans. denied.

       Additionally, our supreme court has held that firing a weapon in the direction

       of a victim is substantial evidence from which a jury could infer intent to kill.

       Leon, 525 N.E.2d at 332.


[15]   After repeatedly threatening to kill York, Amos pursued her in a vehicular

       chase, shot out the back window of York’s vehicle, repeatedly rammed it, and

       ultimately caused it to become disabled. Amos retrieved a firearm and

       approached York; he fired multiple shots at close range. While York lay face-

       down in a fetal position on the ground, Amos fired a shot into her back. He

       kicked her mouth and stomped on her head and back. The evidence of record

       does not reveal a serious evidentiary dispute as to whether Amos intended to

       kill York or rather to batter her.



                                               Conclusion
[16]   The evidence did not warrant a battery instruction. Accordingly, the trial court

       did not abuse its discretion by refusing the proffered instruction.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2304 | March 6, 2018   Page 7 of 8
[17]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2304 | March 6, 2018   Page 8 of 8
