MEMORANDUM DECISION                                                              FILED
                                                                            Nov 21 2017, 9:37 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
regarded as precedent or cited before any                                         and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Bryan Tuggle,                                           November 21, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1706-CR-1372
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Stanley Kroh,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        49G03-1702-F1-7695



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1372 | November 21, 2017             Page 1 of 8
                                               Case Summary
[1]   Bryan Tuggle (“Tuggle”) appeals his conviction for Attempted Murder, a Level

      1 felony.1 We affirm.



                                                   Issues
[2]   Tuggle presents two issues for review:


                 I.       Whether the State failed to present sufficient evidence to
                          withstand Tuggle’s motion for involuntary dismissal and
                          to support his conviction; and


                 II.      Whether the habitual offender adjudication was
                          erroneously treated as a separate conviction necessitating
                          remand for correction of the sentencing order.


                                Facts and Procedural History
[3]   During February of 2017, Larhonda Myers (“Myers”), Daron Gary (“Gary”),

      Shontrell Gary (“Shontrell”), and Tuggle worked together at an Indianapolis

      fast-food restaurant. Tuggle was dating Shontrell and lived with her and Gary.

      Gary sometimes provided transportation to work for Myers, and had agreed to

      do so late in the evening of February 22, 2017. Myers, who had received an




      1
          Ind. Code §§ 35-42-1-1, 35-41-5-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1372 | November 21, 2017   Page 2 of 8
      income tax refund, had agreed to loan Gary $200.00. She told Gary that he

      could have the money when he picked her up for work.


[4]   When Gary arrived to pick up Myers, Shontrell and Tuggle were in the vehicle.

      Gary indicated that he was dropping them off at home before taking Myers to

      work and helping her close the restaurant. Shontrell and Myers began to argue

      at some point during the drive, and Myers overheard Tuggle whisper to

      Shontrell, “just leave it alone. It’s going to be took [sic] care of.” (Tr. at 70.)


[5]   Once the group arrived at the house, everyone except Myers exited the vehicle.

      Gary spoke with Tuggle outside the vehicle; Gary then entered the back seat

      and appeared to be looking for something. Myers offered to help. Instead of

      answering her, Gary pulled Myers into the back seat and began to beat her.

      Gary struck Myers with his fists approximately twenty times and strangled her

      until she briefly lost consciousness.


[6]   As Myers regained consciousness, she was aware that Tuggle and Gary were

      trying to throw her out of the vehicle. Myers attempted to exit the vehicle on

      her own but felt a stabbing pain in her side. She heard Gary tell Tuggle “get

      that bitch.” (Tr. at 56.) Tuggle responded by jumping in front of Myers and

      stabbing her in the chest. Tuggle also slashed Myers’ neck before she escaped

      and began to run.


[7]   Myers knocked at the doors of some neighbors but got no response.

      Eventually, she collapsed in a chair on a neighbor’s porch. The neighbor

      discovered Myers covered in blood and called 9-1-1.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1372 | November 21, 2017   Page 3 of 8
[8]    Myers identified Gary and Tuggle as her attackers. Tuggle was charged with

       Attempted Murder and Aggravated Battery. The State also alleged him to be a

       habitual offender.


[9]    On June 9, 2017, Tuggle was tried in a bench trial and found guilty of the

       charges against him. He admitted his status as a habitual offender. At the

       sentencing hearing, the trial court vacated the Aggravated Battery conviction

       and sentenced Tuggle to thirty-five years imprisonment on the Attempted

       Murder conviction. The sentence was enhanced by fifteen years due to

       Tuggle’s status as a habitual offender. This appeal ensued.



                                 Discussion and Decision
                          Evidentiary Support for Conviction
[10]   At the close of the State’s case-in-chief, Tuggle made a motion for involuntary

       dismissal pursuant to Indiana Trial Rule 41(B), which provides in relevant part:


               After the plaintiff or party with the burden of proof upon an
               issue, in an action tried by the court without a jury, has
               completed the presentation of his evidence thereon, the opposing
               party, without waiving his right to offer evidence in the event the
               motion is not granted, may move for a dismissal on the ground
               that upon the weight of the evidence and the law there has been
               shown no right to relief. The court as trier of the facts may then
               determine them and render judgment against the plaintiff or may
               decline to render any judgment until the close of all the evidence.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1372 | November 21, 2017   Page 4 of 8
[11]   Tuggle argues that the trial court erroneously denied his motion because the

       State failed to establish his participation in the stabbing. More specifically, he

       claims that Myers initially implicated only Gary and that she had difficulty

       making an out-of-court identification of Tuggle when presented with a

       photographic line-up. But these contentions, even if true, seek to invoke a

       reweighing of evidence and thus do not comport with our standard of review.


[12]   A motion for an involuntary dismissal in a bench trial “is essentially a test of

       the sufficiency of the State’s evidence.” Workman v. State, 716 N.E.2d 445, 448

       (Ind. 1999). The trial court weighs the evidence and determines the credibility

       of the witnesses. Id. The motion should be granted if the State fails to prove

       the essential elements of the offense beyond a reasonable doubt. Id. We review

       the trial court’s decision for clear error. Todd v. State, 900 N.E.2d 776, 778 (Ind.

       Ct. App. 2009). We do not reweigh the evidence or judge the credibility of the

       witnesses. Id. Reversal for clear error is appropriate only when the evidence is

       without conflict and points unerringly to a conclusion different from that

       reached by the trial court. Id.


[13]   To convict Tuggle of Attempted Murder, as charged, the State was required to

       prove beyond a reasonable doubt that Tuggle knowingly or intentionally

       stabbed Myers with the specific intent to kill her, which constituted a

       substantial step toward the commission of Murder. I.C. §§ 35-42-1-1, 35-41-5-1;

       App. at 33. Intent to kill may be inferred from the nature of the attack and the

       circumstances surrounding the crime, and the trier of fact may infer intent to



       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1372 | November 21, 2017   Page 5 of 8
       kill from the use of a deadly weapon in a manner likely to cause death or great

       bodily harm. Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002).


[14]   At Tuggle’s trial, the State presented evidence that Myers had been stabbed ten

       to fourteen times. Also, her throat had been slashed. Myers testified that

       Tuggle had inflicted at least some of those wounds; she stated that she had “no

       doubt.” (Tr. at 57.)


[15]   Indianapolis Metropolitan Police Detective Keith Albert (“Detective Albert”)

       testified that Tuggle’s blood had been found in Gary’s vehicle and that Tuggle

       had a fresh-looking cut on his hand when he was arrested one day after Myers

       had been stabbed. Detective Albert also contradicted Tuggle’s claim that Myers

       had struggled to identify him. Detective Albert testified that he showed Myers

       a photographic line-up, Myers immediately placed her finger on Tuggle’s

       photograph, and she stated, “that’s the asshole who stabbed me.” (Tr. at 102.)

       As such, the State did not fail to prove an essential element of the charge and

       the trial court did not clearly err in denying the motion for involuntary

       dismissal.


[16]   A motion for involuntary dismissal addresses the evidence presented in the

       State’s case-in-chief. According to Tuggle, his defense “provided greater

       support for his innocence” and thus a review of the totality of the evidence is

       warranted under our sufficiency of the evidence standard. Appellant’s Brief at

       16. Looking to the evidence and reasonable inferences supporting the

       conviction, without reweighing the evidence or judging the credibility of


       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1372 | November 21, 2017   Page 6 of 8
       witnesses, we will affirm the conviction “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.” McHenry v.

       State, 820 N.E.2d 124, 126 (Ind. 2005).


[17]   Myers testified that Tuggle stabbed her in the chest and sliced her throat.

       Tuggle’s emphasis upon his testimony that Gary was the sole perpetrator

       merely presents a request to reweigh the evidence. Sufficient evidence supports

       Tuggle’s conviction for Attempted Murder.


                  Habitual Offender Sentencing Enhancement
[18]   Tuggle contends that the trial court improperly treated the habitual offender

       sentencing enhancement as a separate criminal conviction. The habitual

       offender statute does not set forth an independent offense; rather “habitual

       offender” is a status that results in an enhanced sentence. I.C. § 35-50-2-8;

       Maul v. State, 467 N.E.2d 1197, 1199 (Ind. 1984). Because the status

       adjudication is not a separate crime and does not result in a separate sentence,

       when the trial court has imposed a separate sentence, the case must be

       remanded for correction of the sentencing order. Id.


[19]   In Maul, the sentencing order provided that the defendant was sentenced on

       Count I to a term of years and further provided that he was also sentenced on

       “Count II, Class Habitual Offender, 30 years stated term, 30 years executed.”

       467 N.E.2d at 1199. On appeal, the Court remanded the case to the trial court



       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1372 | November 21, 2017   Page 7 of 8
       for the entry of a proper sentencing order “with the enhancement on the

       underlying felony.” Id.


[20]   Here, by contrast, the sentencing order and Abstract of Judgment show that the

       thirty-five year sentence imposed for Count I, Attempted Murder, was

       enhanced by fifteen years due to Tuggle’s status as a habitual offender. There is

       no separate sentence imposed upon Tuggle relative to Count III, Habitual

       Offender.2 Thus, there is no necessity for a remand of the case to correct the

       sentence imposed.



                                                Conclusion
[21]   The trial court did not commit clear error in denying Tuggle’s motion for an

       involuntary dismissal. Sufficient evidence supports Tuggle’s conviction. He

       was properly sentenced to a single term of imprisonment for Attempted

       Murder.


[22]   Affirmed.


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




       2
        The Sentencing Order and Abstract of Judgment indicate that the disposition of Count III was “Conviction
       Merged.” App. at 19, 21. This is an inaccurate reference as there was no separate conviction; however,
       Tuggle has properly been ordered to serve a single, enhanced sentence of fifty years.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1372 | November 21, 2017       Page 8 of 8
