MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Sep 16 2019, 5:57 am

court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office                                        Attorney General of Indiana
Cass County Public Defender
                                                         Samantha M. Sumcad
Logansport, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terrance Lonnell-Collier,                                September 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-105
        v.                                               Appeal from the
                                                         Cass Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Richard A. Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1710-F1-5



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-105 | September 16, 2019              Page 1 of 11
[1]   Terrance Lonnell-Collier (“Collier”) appeals his convictions for attempted

      murder,1 a Level 1 felony, and conspiracy to commit armed robbery,2 a Level 3

      felony, and he raises two issues:


                 I.       Whether there was sufficient evidence to support his
                          conviction for attempted murder; and


                 II.      Whether there was sufficient evidence to support his
                          conviction for conspiracy to commit armed robbery.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In the months leading up to October 2017, Cody Tunis (“Tunis”) gave Alicia

      Hill3 (“Hill”) marijuana and advanced her about $300 to $400 for a deposit on

      her apartment in Logansport, Indiana. Tr. Vol. 2 at 237-38. Sometime before

      October, Tunis began asking Hill to pay him back for both the rent

      advancement and the marijuana. Id. at 196, 238.


[4]   On October 1, 2017, Hill contacted Tunis and asked him if he would be home

      that evening because she wanted to pay him the money she owed for the rent

      advancement. Id. at 239. That same day, Hill spoke with Collier, but the




      1
          See Ind. Code § 35-42-1-1(2); Ind. Code § 35-41-5-1(a).
      2
          See Ind. Code § 35-42-5-1(a); Ind. Code § 35-41-5-2(a).
      3
       At trial, several witnesses referred to Hill by her nickname, “Noonie.” See, e.g., Tr. Vol. 2 at 144, 173, 186,
      229, 237.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-105 | September 16, 2019                    Page 2 of 11
      content of that conversation is unknown. Id. at 147. Later in the day, Hill

      spent time with Collier at his home. Id. at 150. As cousins, Hill and Collier

      had a close relationship. Id. at 198, 241.


[5]   Later that evening, Collier, Hill, and two unidentified men (“the two men”)

      departed from Collier’s home together in Collier’s girlfriend’s black Jeep. Id. at

      150-51. Hill drove the group to Tunis’s home and parked in an alley behind the

      home. Id. at 244-45. Collier and the two men exited the Jeep and sat down at a

      picnic table in Tunis’s backyard while Hill walked to the front door. Id.; Tr.

      Vol. 3 at 24. Hill left the Jeep running. Tr. Vol. 3 at 6.


[6]   As Hill approached Tunis’s front door, she was greeted by Andrea Melton

      (“Melton”), Tunis’s fiancé. Tr. Vol. 2 at 194-95, 236. Tunis, Melton, their two

      children, and a mutual friend were eating fajitas and Hill shared a bite, eating

      some food off of Tunis’s plate. Id. at 195, 241; Tr. Vol. 3 at 25. When Tunis

      asked Hill about the money she owed him, Hill told Tunis that Collier wanted

      to speak with him outside because Collier wanted to “holler” at Tunis. Tr. Vol.

      2 at 241. When Tunis looked out the window and saw Collier and the two men

      sitting in his yard, he feared that he was going to get jumped. Id. at 242-43.

      Before Hill led Tunis outside to meet with Collier, Tunis told Melton to lock

      the front door. Tr. Vol. 3 at 26.


[7]   When Tunis walked outside, Collier and the two men stood up from the picnic

      table, and Collier walked toward Tunis. Tr. Vol. 2 at 245. Tunis stuck his hand

      out to Collier in an attempt to greet him cordially, but Collier pulled a gun out


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-105 | September 16, 2019   Page 3 of 11
      of the front of his pants and pointed it directly at Tunis’s face, eventually resting

      the barrel of the gun against Tunis’s forehead. Id. at 246-47. Collier demanded,

      “give me the dope and the money.” Id. at 247. Tunis explained that he did not

      have any money, so Collier instead insisted that Tunis give Collier his vehicle, a

      Chrysler 300. Id. at 201, 247. Tunis agreed to get the keys for the car from

      inside his house, but Collier withdrew his request for the car keys because he

      believed that Tunis had guns inside the house. Id. at 248-49. Collier then

      grabbed Tunis by the shirt. Id. at 249. Collier briefly turned away from Tunis

      and looked at the two men; Tunis, believing this gave him the opportunity to

      flee, swatted at Collier’s gun, momentarily pushing it aside, and turned back

      toward his house. Id. at 249-50; Tr. Vol. 3 at 28-29. Two or three seconds later,

      Collier shot Tunis at point blank range in Tunis’s lower back, with the bullet

      striking just above Tunis’s right buttock and close to his tailbone. Tr. Vol. 2 at

      202, 249; Tr. Vol. 3 at 7, 36. Collier, Hill, and the two men ran to the Jeep,

      entered it, and sped away. Tr. Vol. 3 at 30. Tunis was rushed to the hospital,

      where he was placed in a medically-induced coma for several days. Id. at 31.

      His injuries left him permanently disabled. Id. at 78.


[8]   On October 3, 2017, the State charged Collier with attempted murder, a Level 1

      felony, and on June 18, 2018, it filed two more charges: attempted robbery

      resulting in serious bodily injury, a Level 2 felony, and conspiracy to commit

      armed robbery as a Level 3 felony. Appellant’s App. Vol. II at 16, 53.


[9]   The charge for conspiracy to commit armed robbery reads as follows:



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-105 | September 16, 2019   Page 4 of 11
               Lonnell Collier did knowingly or intentionally agree with Alicia
               Hill and other persons to take property from Cody Tunis using
               force or by threatening the use of force, while . . . Lonnell Collier
               was armed with a deadly weapon, and a party to this agreement
               did take a substantial step in furtherance thereof: Alicia Hill
               contacted Cody Tunis and arranged a meeting with him as a
               pretext to lure him outside of his home[.]


       Id. at 54.


[10]   Collier was tried before a jury on November 14 and 15, 2018, and at the end of

       the second day, he was found guilty on all three counts. Id. at 121; Tr. Vol. 3 at

       67. On December 11, 2018, the trial court imposed consecutive sentences of

       thirty-five years for attempted murder and nine years for conspiracy to commit

       armed robbery, and it vacated the conviction for attempted robbery resulting in

       serious bodily injury. Tr. Vol. 3 at 78-79. Collier now appeals. Additional facts

       will be provided as necessary.


                                      Discussion and Decision
[11]   Collier argues that the State failed to present sufficient evidence for both of his

       convictions. When reviewing sufficiency claims, we will not reweigh the

       evidence or consider the credibility of witnesses but will only consider the

       evidence most favorable to the verdict, together with all reasonable inferences

       that flow therefrom. Neville v. State, 802 N.E.2d 516, 518 (Ind. Ct. App. 2004),

       trans. denied. However, an inference cannot be based on evidence that is

       uncertain or speculative or which raises merely a conjecture or possibility.

       Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001). We will affirm a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-105 | September 16, 2019   Page 5 of 11
       conviction only when each material element of the charge is supported by

       evidence in the record from which a rational trier of fact could have found guilt

       beyond a reasonable doubt. Seketa v. State, 817 N.E.2d 690, 696 (Ind. Ct. App.

       2004).


                   I.       Sufficiency of Evidence – Attempted Murder
[12]   Collier argues that the evidence for his attempted murder conviction was

       insufficient because the State failed to prove that he acted with the requisite

       specific intent to kill Tunis.


                Typically, to prove that a person has committed an attempt
                crime, the State must show that the defendant engaged in
                conduct that constitutes a substantial step toward the commission
                of the crime attempted, while acting with the same culpability of
                that crime. I.C. § 35-41-5-1. However, our supreme court has
                emphasized the importance of requiring specific intent to kill
                before a defendant can be convicted of attempted murder, despite
                that the culpability requirement for murder includes the lesser
                standard of knowingly.


       Fry v. State, 885 N.E.2d 742, 750 (Ind. Ct. App. 2008) (internal citation and

       quotation marks omitted), trans. denied. Therefore, the State was required to

       prove that Collier acted with the specific intent to kill Tunis, and while doing

       so, engaged in a substantial step toward killing Tunis. See id.


[13]   Collier argues that the evidence was insufficient to prove he acted with specific

       intent because the evidence merely “suggests an accidental firing” of the gun.

       Appellant’s Br. at 15. In support, he correctly observes that as Tunis turned


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-105 | September 16, 2019   Page 6 of 11
       away from Collier to flee, Tunis tried to swat Collier’s gun away and that the

       gun fired only shortly thereafter. Tr. Vol. 2 at 249-50; Tr. Vol. 3 at 28-29.

       Relying on Harris v. State, Collier argues that this evidence is not “strongly

       corroborative” of the “firmness” of his intent to kill Tunis. 425 N.E.2d 112,

       115-16 (Ind. 1981) (quoting Zickefoose v. State, 270 Ind. 618, 622-23, 388 N.E.2d

       507, 510 (1981)).


[14]   We disagree. Here, Collier drew a gun and pressed it against Tunis’s forehead.

       Tr. Vol. 2 at 246-47. Contrary to his argument, Collier did not fire his gun

       simultaneously with the swatting of the gun but fired it two or three seconds

       later. Tr. Vol. 3 at 36. Intent to kill may be inferred from the use of a deadly

       weapon in a manner likely to cause death or great bodily injury. Fry, 885

       N.E.2d at 750. “[D]ischarging a weapon in the direction of a victim is

       substantial evidence from which the jury could infer intent to kill.” Corbin v.

       State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006). Collier did not inadvertently

       fire the gun. Because Collier fired the gun two or three seconds after Tunis

       swatted it, the evidence was sufficient to show that he fired the gun with the

       calculated purpose and specific intent to kill Tunis. See Fry, 885 N.E.2d at 850.

       Thus, despite Collier’s argument to the contrary, the State’s evidence was

       “strongly corroborative” of Collier’s specific intent to kill Tunis. Moreover,

       Collier’s shooting of Tunis was a “substantial step” toward the commission of

       attempted murder. See Harris, 425 N.E.2d at 115-16. Thus, the State presented

       sufficient evidence to prove that Collier acted with specific intent to kill Tunis

       and to support his conviction for attempted murder.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-105 | September 16, 2019   Page 7 of 11
                II.      Sufficiency of Evidence – Conspiracy to Commit
                                         Armed Robbery
[15]   Even though Collier was convicted of conspiracy to commit armed robbery, he

       first contends the evidence was insufficient even to prove he committed

       conspiracy to commit robbery. A conspiracy involves an intelligent and

       deliberate agreement, i.e., a meeting of minds, between the parties. Woods v.

       State, 274 Ind. 624, 631, 413 N.E.2d 572, 576 (1980); Conn v. State, 948 N.E.2d

       849, 853 (Ind. Ct. App. 2011). Mere association with a co-conspirator, standing

       alone, is insufficient to support a conviction for conspiracy, Porter v. State, 715

       N.E.2d 868, 871 (Ind. 1999), and a “conspiracy may not be established by mere

       suspicion.” Woods, 413 N.E.2d at 576. However, the State need not prove a

       formal agreement; circumstantial evidence implying an agreement is enough.

       Taylor v. State, 86 N.E.3d 157, 164 (Ind. 2017). An agreement may be inferred

       from a defendant’s actions and the circumstances surrounding his involvement.

       Conn, 948 N.E.2d at 853. “[A] conviction for conspiracy may, and often will,

       rest solely on circumstantial evidence.” Id. (quoting Minniefield v. State, 512

       N.E.2d 1103, 1105 (Ind. 1987)). Thus, to prove that Collier conspired to rob4

       Tunis, the State was required to show that Collier, with the intent to commit

       robbery, agreed with Hill or the two men to rob Tunis, and that Hill or the two




       4
        A person commits robbery, a Level 5 felony, if the person “knowingly or intentionally takes property from
       another person or from the presence of another person: (1) by using or threatening the use of force on any
       person; or (2) by putting any person in fear[.]” I.C. § 35-42-5-1(a).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-105 | September 16, 2019              Page 8 of 11
       men performed an overt act in furtherance of the agreement. See Appellant’s

       App. Vol. II at 54; see also Ind. Code § 35-41-5-2; Ind. Code § 35-42-5-1.


[16]   Here, the State presented sufficient evidence that Collier conspired with Hill

       and the two men to rob Tunis. The evidence plainly shows that Collier, Hill,

       and the two men hatched a coordinated, calculated plan. Collier and Hill spoke

       earlier in the day. Tr. Vol. 2 at 147. Hill arranged the meeting with Tunis at his

       home, under the pretense of paying money back to Tunis, and brought Collier

       and the two men over to Tunis’s home. Id. at 147, 239. Hill left the Jeep

       running to allow them to quickly flee the scene after they committed their

       crime. Tr. Vol. 3 at 6. While at Tunis’s home, instead of paying Tunis the

       money she owed him, Hill lured Tunis outside to talk to Collier. Tr. Vol. 2 at

       241. As Collier confronted Tunis, the two men arose from the picnic table and

       walked toward Tunis, as if to provide backup for Collier. Id. at 245. Collier

       then demanded money, “dope,” and the keys to Tunis’s Chrysler 300 while

       pressing the barrel of his gun against Tunis’s forehead. Id. at 201, 246-47.

       Once Collier shot Tunis, Collier, Hill, and the two men ran together to the Jeep

       and sped away. Tr. Vol. 3 at 30. Post-crime conduct, such as fleeing together

       from the scene, as here, can support a conspiracy conviction. See Shane v. State,

       716 N.E.2d 391, 397 (Ind. 1999). These facts establish that Collier, Hill, and

       the two men conspired to rob Tunis and committed at least one overt act in

       furtherance of that conspiracy. See I.C. § 35-41-5-2; Taylor, 86 N.E.3d at 164.


[17]   We also reject Collier’s argument that the State failed to present sufficient

       evidence for the crime for which he was actually convicted - conspiracy to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-105 | September 16, 2019   Page 9 of 11
       commit armed robbery. To support Collier’s conviction, the State was required

       to prove that Collier, with the intent to commit armed robbery, agreed with

       another person to commit armed robbery and that Collier or an accomplice

       performed an overt act in furtherance of the agreement. See I.C. § 35-41-5-2;

       Taylor, 86 N.E.3d at 164.


[18]   Here, Collier’s actions, viewed in context of the actions of Tunis, Hill, and the

       two men, provided sufficient circumstantial evidence to support his conviction

       for conspiracy to commit armed robbery. See Taylor, 83 N.E.3d at 164. For

       instance, because Tunis admitted that he was a drug dealer, the jury could have

       reasonably concluded that Tunis possessed a gun, and was willing to use it,

       because of the dangers inherent to selling illegal drugs. Tr. Vol. 2 at 196, 237-38,

       243. This conclusion would have been especially reasonable to the jury because

       during the confrontation, Collier withdrew his command that Tunis retrieve his

       car keys because Collier feared that Tunis would retrieve a gun if he went inside

       his house. Id. at 248-49. Moreover, this inference was reasonable also because

       Collier did not attempt to rob Tunis without help but instead brought the two

       men to serve as backup if Collier’s confrontation with Tunis went awry. The

       behavior of the two men during the confrontation also supported the inference

       that Collier agreed with the Hill and the two men to rob Tunis while Collier

       was armed: 1) there was no evidence that the two men appeared to be surprised

       when Collier drew his gun from his waistband; 2) the two men arose from the

       picnic table when Collier confronted Tunis; and 3) the two men moved closer to

       Tunis and Collier as the confrontation between Collier and Tunis reached its


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-105 | September 16, 2019   Page 10 of 11
       apex. Id. at 245. As to Hill’s claim that she was surprised that Collier brought a

       gun, id. at 202, the jury was free to discount Hill’s testimony, especially since

       she admitted on the stand that she had perjured herself earlier in her testimony

       when she claimed she had never bought drugs from Tunis. Id. at 190, 196-97.

       Thus, based on the foregoing evidence, the jury could have inferred an

       agreement between Collier and Hill and the two men based on Collier’s actions

       and “the circumstances surrounding [his] involvement.” See Conn, 948 N.E.2d

       at 853. The State presented sufficient evidence to prove beyond a reasonable

       doubt that Collier committed conspiracy to commit armed robbery.


[19]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-105 | September 16, 2019   Page 11 of 11
