MEMORANDUM DECISION                                                                  FILED
                                                                              May 24 2016, 8:06 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
Mark S. Lenyo                                          Gregory F. Zoeller
South Bend, Indiana                                    Attorney General of Indiana

                                                       Christina D. Pace
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                         IN THE
    COURT OF APPEALS OF INDIANA

Juwan Jones,                                           May 24, 2016
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       71A04-1507-CR-913
        v.                                             Appeal from the St. Joseph
                                                       Superior Court
State of Indiana,                                      The Honorable John M.
Appellee-Plaintiff.                                    Marnocha, Judge
                                                       Trial Court Cause No.
                                                       71D02-1407-F1-1



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016           Page 1 of 11
                                      Statement of the Case
[1]   Juwan Jones appeals his conviction for attempted murder, a Level 1 felony, and

      aggravated battery, as a Level 3 felony, following a jury trial. Jones raises three

      issues on appeal which we consolidate and restate as follows:

              1. Whether the trial court abused its discretion when it denied
                 Jones’ motion to dismiss the attempted murder charge.


              2. Whether the State presented sufficient evidence to support his
                 convictions.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On July 9, 2014, between 10:00 p.m. and 11:00 p.m., Willie Menyard went

      with his son, Willie Thomas, to a gas station located at Western Avenue and

      Falcon Avenue in South Bend to fill his son’s vehicle with gas. Menyard saw

      his niece at the gas station, spoke with her, pumped gas into Thomas’ vehicle,

      and went inside the gas station’s convenience store to pay.


[4]   While Menyard was inside the store, a red vehicle with a white top, later

      identified as Jones’ vehicle, entered the gas station parking lot. After Menyard

      exited the store and had walked a few feet toward Thomas’ vehicle, the

      passenger in the red vehicle, later identified as Jones, reached across the driver,

      later identified as Isaiah Samelton, and aimed a gun in Menyard’s direction.

      Then Menyard, Thomas, and the gas station cashier, Tony Garcia, all heard a

      round of multiple gun shots, but none of them saw who was shooting. At that
      Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016   Page 2 of 11
      time, Menyard was struck with a bullet which went into the right side of his

      back near the rib area and through his right arm. Menyard stated that the

      bleeding “felt like water . . . running down [his] back.” Tr. at 79. Thomas

      drove Menyard to the hospital where Menyard’s wounds were treated and

      Menyard was kept overnight.


[5]   In the meantime, Garcia heard several more gun shots as he observed the red

      and white vehicle circling the parking lot, and he called the police. Garcia then

      observed the red and white car pull up to the west side of the gas station, and he

      heard another round of gun shots, which sounded like more than one gun being

      shot. There were a total of twenty-three gun shots at the gas station that

      evening. The gas station had one operating surveillance camera on top of the

      entrance to its convenience store, and that camera caught video of the red and

      white car and the shootings.


[6]   South Bend Police Officer Greg Howard, along with other officers, was

      dispatched to the gas station due to a ShotSpotter 1 alert, and he arrived on the

      scene after Menyard had already been taken to the hospital. Officer Howard

      watched the gas station’s surveillance camera footage, which showed that a red

      Buick with a light colored top, heavy damage to the driver’s side door, a




      1
        ShotSpotter is an acoustic gunshot detection and location system produced and operated by SST, Inc. that
      uses microphones in a geographic area to listen for the sound of gunfire. ShotSpotter detects and records the
      sound of gunfire and uses multilateration (similar to triangulation) to determine the location of the gunfire. It
      then reports that location to the local law enforcement agencies that are its customers, which here included
      the South Bend Police Department.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016                  Page 3 of 11
      temporary license plate, and a luggage rack on the trunk was involved in the

      shooting. Officer Howard also had a description of the driver of the car as a

      black male with no shirt on and the passenger of the car as a black male with

      dreadlocks.


[7]   A short time after viewing the surveillance footage, Officer Howard began a

      search for the red Buick. He saw a red Buick that matched the description of

      the suspect vehicle parked in front of a house on Meade Street, not far from the

      gas station on Western Avenue. He observed a woman and two men on the

      front porch of the house, and the men matched the description of the suspects.

      Officer Howard surveilled the house and saw the two suspects enter the red

      Buick and travel south. Officer Howard and another officer, Officer Anuar

      Velazquez, began following the red Buick. Officer Howard triggered his lights

      and sirens to initiate a traffic stop and the red Buick ultimately stopped on

      Huron Street. The passenger then exited the vehicle and started to run down a

      nearby alley.


[8]   Officer Howard chased after the passenger while Officer Velzquez stayed with

      the red Buick and ultimately detained the driver, Samelton. Officer Howard

      saw the passenger, later identified as Jones, attempt and fail to jump over a

      privacy fence. At that point Officer Howard saw Jones “bobble something”

      and observed something drop to the ground. Tr. at 110. Jones proceeded to

      run through a vacant lot as Officer Howard chased after him and yelled,

      “Police! Stop running!” Id. Jones ultimately stopped and laid down, and

      Officer Howard detained him.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016   Page 4 of 11
[9]    Officer Howard then went back to the area by the privacy fence where he saw

       something fall to the ground, and he found a loaded brown handgun and a gun

       magazine near the handgun. Crime scene technicians also searched the crime

       scene areas of the gas station and the traffic stop, and they found shell casings at

       the gas station, a plastic bag containing a number of unfired bullets on the

       ground just outside the Buick’s passenger-side door, two Smith and Wesson

       gun magazines in the Buick’s glove box, and shell casings on the driver’s side

       floor board of the Buick. The following day, Officer Howard and another

       officer went back to the scene of the traffic stop and found a second handgun on

       the other side of the privacy fence that Jones had attempted to jump over.

       Ballistics confirmed that the spent shell casings recovered from the gas station

       crime scene had been fired from the two guns recovered at the scene of the

       traffic stop. The crime lab also found Jones’ fingerprints on the two gun

       magazines that had been found in the Buick’s glove box.


[10]   Bureau of Alcohol, Tobacco, Firearms, and Explosives Agent Sheldon Scott

       interviewed Jones on the night of July 9, and Jones admitted that the red Buick

       in which he was stopped and which appeared in the surveillance footage

       belonged to him and that he was in that car the entire night of July 9. Jones

       also admitted that the first handgun recovered at the scene of the traffic stop

       was his gun and that he had it with him the entire evening of July 9. Jones

       denied being at the gas station on July 9 and denied any involvement in the

       shooting. He also denied knowing Samelton. Jones subsequently made a




       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016   Page 5 of 11
       telephone call from jail to his mother and told her that the police “got [him] on

       camera.” State’s Ex. 100.


[11]   On July 11, 2014, the State charged Jones with attempted murder, a Level 1

       felony, and aggravated battery, as a Level 3 felony. On April 22, 2015, Jones

       filed a motion to dismiss the attempted murder charge on the grounds that the

       charging information failed to name an alleged victim. The trial court

       summarily denied that motion on the same day because the motion was

       untimely.


[12]   Following a trial on April 22 and 23, 2015, a jury found Jones guilty as

       charged. On June 22, 2015, the trial court sentenced Jones to an executed term

       of thirty years for attempted murder and an executed term of nine years for

       aggravated battery, with the sentences to run concurrently. This appeal ensued.


                                         Discussion and Decision
                                         Issue One: Motion to Dismiss

[13]   Jones contends that the trial court erred in denying his motion to dismiss.

       Jones’ motion alleged that the State’s failure to identify in the charging

       information the specific victim of the alleged attempted murder violated the

       Sixth Amendment to the United States Constitution and Article 1, Section 13 of

       the Indiana Constitution.2 We review a trial court’s decision on a motion to




       2
         Specifically, Jones alleged the lack of the victim’s identity in the charging information denied him his
       federal and state constitutional rights to be informed of the nature and cause of the action against him.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016                  Page 6 of 11
       dismiss for an abuse of discretion, and we reverse the decision only where it is

       clearly against the logic and effect of the facts and circumstances. See, e.g., State

       v. Gill, 949 N.E.2d 848, 849 (Ind. Ct. App. 2011), trans. denied.


[14]   Indiana Code Section 35-34-1-4(b)(1) (2014) requires that a motion to dismiss

       be filed “no later than . . . twenty (20) days” prior to the omnibus date when the

       defendant is charged with a felony. Here, the omnibus date was September 22,

       2014. Appellant’s App. at A-69; Tr. at 4. Yet Jones did not file his motion to

       dismiss until April 22, 2015, which was 213 days after the omnibus date. When

       a defendant fails to timely file his motion to dismiss, the statute provides that

       the trial court may “summarily den[y]” the motion if it is based on a ground

       specified in Indiana Code Section 35-34-1-4(a)(1)-(5). Ind. Code § 35-34-1-4(b).

       Jones’ motion to dismiss was based upon either Indiana Code Section 35-34-1-

       4(a)(1) (the indictment or information is defective) or Indiana Code Section 35-

       34-1-4(a)(4) (the indictment or information does not state the offense with

       sufficient certainty). Therefore, the trial court did not abuse its discretion in

       summarily denying his untimely motion to dismiss.


                                Issue Two: Sufficiency of the Evidence

                                              Standard of Review


[15]   Jones maintains that the State failed to provide sufficient evidence to support

       either of his convictions. In reviewing a sufficiency of the evidence claim, we

       neither reweigh the evidence nor assess the credibility of the witnesses. See, e.g.,

       Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the


       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016   Page 7 of 11
       probative evidence and reasonable inferences therefrom that support the

       conviction, Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App. 2012), trans.

       denied, and we “consider conflicting evidence most favorably to the trial court’s

       ruling,” Wright v. State, 828 N.E.2d 346, 352 (Ind. 2005). We affirm if the

       probative evidence and reasonable inferences drawn from that evidence “could

       have allowed a reasonable trier of fact to find the defendant guilty beyond a

       reasonable doubt.” Jackson, 925 N.E.2d at 375.


                                              Attempted Murder


[16]   Pursuant to Indiana Code Sections 35-41-5-1 and 35-42-1-1(1), to prove that

       Jones attempted to commit murder, the State was required to show that, with

       the intent to commit the crime of murder, Jones discharged a firearm in the

       direction of others with the intent to kill, which conduct comprised a substantial

       step toward the commission of the crime of murder. On appeal, Jones asserts

       that the State failed to provide sufficient evidence that (1) he discharged a

       firearm at the gas station and (2) he had the specific intent to kill. However, the

       State has met its burden.


[17]   Although Jones is correct that no witness saw Jones discharge a firearm, a

       conviction may be based on circumstantial evidence alone. Fry v. State, 885

       N.E.2d 742, 750 (Ind. Ct. App. 2008), trans. denied. Here, the State provided

       the following circumstantial evidence that Jones was one of the shooters at the

       gas station on July 9, 2014: (1) the surveillance footage from the gas station

       shows Jones’ car entering the gas station parking lot with the dreadlocked


       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016   Page 8 of 11
       passenger leaning over a shirtless driver and shooting a firearm; (2) Jones

       admitted to his mother in a jail house telephone call that the police “got [him]

       on camera,” State’s Ex. 100; (3) Jones admitted that the car shown in the

       surveillance recording was his car and that he was in his car the entire evening

       of July 9; (4) on that same evening, after the shootings, Officer Howard spotted

       Jones’ car in front of a house near the gas station where a man with dreadlocks

       (Jones) was sitting on the porch with a man with no shirt on (Samelton); (5)

       Officer Howard then saw Samelton and Jones get into Jones’ car and drive

       away; (6) Officer Howard then pulled over Jones’ car and saw Jones run away,

       attempt to climb a privacy fence, and drop an object; (7) the object Jones

       dropped was a gun which ballistics determined had fired the spent shell casings

       found at the scene of the gas station; (8) Jones admitted that the gun was his

       and that he had the gun with him the entire evening of July 9. This

       circumstantial evidence is more than sufficient to prove that Jones was one of

       the shooters at the gas station.


[18]   The evidence was also sufficient to prove Jones fired the gun with the intent to

       kill. “Intent to kill may be inferred from the use of a deadly weapon in a

       manner likely to cause death or great bodily 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)), trans. denied. And, “[d]ischarging a weapon in the direction

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

       Id. (citing Fry, 885 N.E.2d at 750). Here, the evidence cited above showed that




       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016   Page 9 of 11
       Jones fired a gun several times in the direction of Menyard. The State provided

       sufficient evidence to support Jones’ attempted murder conviction.

                                              Aggravated Battery


[19]   Pursuant to Indiana Code Section 35-42-2-1.5, to prove that Jones committed

       aggravated battery, the State was required to show that he knowingly or

       intentionally inflicted injury on Menyard that created a substantial risk of death.

       Jones contends that the State failed to provide sufficient evidence that

       Menyard’s injury created a substantial risk of death.


[20]   “[I]n reviewing a sufficiency claim concerning whether the injuries created a

       substantial risk of death, we look to the observable facts, including the nature

       and location of the injury, and the treatment provided.” Oeth v. State, 775

       N.E.2d 696, 702 (Ind. Ct. App. 2002) (citing Tingle v. State, 632 N.E.2d 345,

       354 (Ind. 1994)), trans. denied. However, expert medical testimony is not

       required to prove a substantial risk of death existed. Fleming v. State, 833

       N.E.2d 84, 88 (Ind. Ct. App. 2005) (citing Wilcher v. State, 771 N.E.2d 113, 117

       (Ind. Ct. App. 2002), trans. denied).


[21]   Here, the victim testified that the bullet went all the way through his back and

       right arm, causing so much bleeding that it “felt like water . . . running down

       [his] back.” Tr. at 79. He also testified that his son immediately drove him to

       the hospital, where he was treated in the emergency room and kept overnight.

       In addition, the State submitted into evidence four pictures of Menyard being

       treated in the hospital, including up-close photographs of his still-bleeding

       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016   Page 10 of 11
       wounds, and these photographs were published to the jury. In Oeth, we found

       similar evidence sufficient to prove the injuries created a substantial risk of

       death. Oeth, 775 N.E.2d at 702. The evidence was sufficient to support Jones’

       aggravated battery conviction.


[22]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016   Page 11 of 11
