      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be
                                                                            Apr 06 2020, 10:26 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                               CLERK
                                                                             Indiana Supreme Court
      the defense of res judicata, collateral                                   Court of Appeals
                                                                                  and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Mark S. Lenyo                                             Curtis T. Hill, Jr.
      South Bend, Indiana                                       Attorney General of Indiana
                                                                Myriam Serrano-Colon
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Luvelle Deshawn Neal,                                     April 6, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-1698
              v.                                                Appeal from the St. Joseph
                                                                Superior Court
      State of Indiana,                                         The Honorable Elizabeth C.
      Appellee-Plaintiff.                                       Hurley, Judge
                                                                Trial Court Cause No.
                                                                71D08-1803-F1-5



      Mathias, Judge.


[1]   Following a jury trial, Luvelle Deshawn Neal (“Neal”) was convicted of

      attempted murder as a Level 1 felony and dealing in cocaine as a Level 3


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020                  Page 1 of 9
      felony. Neal appeals and contends that there was insufficient evidence to

      sustain his convictions.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On March 22, 2018, Neal received a call from Darrell Burger (“Darrell”), to

      whom he had sold cocaine and heroin in the past. Darrell’s brother Gage

      Burger (“Gage”) wanted to buy drugs from Neal. The men agreed to meet that

      evening in the parking lot of a downtown South Bend bar, Frank’s Place. The

      Burger brothers arrived in a Mercury Grand Marquis that was borrowed from a

      neighbor. Darrell was driving, and Gage was the front seat passenger. Gage was

      armed with a Glock firearm and a debit card, but no cash. He also brought five

      sets of digital scales commonly used to weigh controlled substances during drug

      transactions.


[4]   Shortly after 6 p.m., Neal arrived with a man named Larry Harris (“Harris”).

      Neal exited their vehicle and got into the backseat of the Grand Marquis,

      behind Gage. He immediately grabbed Gage by the back of his neck and

      pointed a gun at the back of Gage’s head; Darrell demanded that Neal get out

      of the car and started the engine. Neal briefly pointed the gun at Darrell and

      then struck Gage on the head with the butt of the gun. Meanwhile, Gage had

      reached for his own weapon and put it under his leg.


[5]   Gage opened the car door and leapt from the vehicle; Gage and Neal

      exchanged fire, and Neal followed Gage out of the vehicle. Darrell, still in the
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020   Page 2 of 9
      driver’s seat, heard multiple gunshots but did not know whether his brother or

      Neal fired first. Darrell pulled out of the parking lot, circled the block, and came

      back to find Gage lying on the ground and bleeding from his neck. Darrell

      drove away. Harris, who had been waiting in his vehicle, heard the gunshots

      and saw the Grand Marquis drive away. Harris saw Neal holding his chest and

      waving him off; Harris pulled out of the parking lot and circled the area until he

      found Neal, picked him up, and took him to a hospital.


[6]   Law enforcement quickly arrived at the scene. South Bend Police Department

      Officer Russell Lupica found Gage lying motionless and bleeding in the parking

      lot. He recovered a gun on the ground near Gage’s knee and performed CPR

      until medics arrived to transport Gage to a hospital. Detective Chris

      Kronewitter was assigned to investigate the shooting; he went to Memorial

      Hospital, where both Neal and Gage were being treated for their injuries.

      Detective Kronewitter spoke to Neal at the hospital that night and again the

      next day, March 23. Neal admitted that he was at Frank’s Place to sell drugs to

      Gage and that he had fired about five shots at Gage. He described hiding

      cocaine and his handgun under a trashcan in the parking lot before fleeing.

      Neal also admitted that he had been dealing marijuana and cocaine for two and

      a half years and had been carrying a gun for two years. Gage’s injuries

      prevented Detective Kronewitter from interviewing him at the time.


[7]   Law enforcement recovered Neal’s gun and various shell casings and bullet

      fragments from the Frank’s Place parking lot. The shell casings were all .40

      caliber but were of two different manufacturer brands. A crime laboratory

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020   Page 3 of 9
      firearm examiner determined that four shell casings were fired from Gage’s gun

      and seven shell casings were fired from Neal’s gun. Law enforcement also

      recovered video surveillance of the shooting from Frank’s Place. Darrell was

      tracked to Mishawaka, where his fiancée hid the wallet, cell phone, and debit

      card that Gage left behind in the Grand Marquis in an outdoor grill. Darrell

      returned the vehicle to his neighbor; its front driver’s side window and back

      passenger’s side window were shattered, and there were several bullet holes

      inside the vehicle. On Darrell’s suggestion, the neighbor reported the car stolen,

      but later admitted that the report was false and she had allowed Darrell to

      borrow the car.


[8]   On March 26, 2018, Neal was charged with Level 1 felony attempted murder,

      Level 3 felony aggravated battery, Level 3 felony attempted armed robbery, and

      Level 5 felony dealing in cocaine. Following a jury trial, on May 15, 2019, Neal

      was found guilty of attempted murder, aggravated battery and dealing in

      cocaine, and not guilty of attempted armed robbery. Because the same facts and

      circumstances supported both the attempted murder and aggravated battery

      offenses, the trial court entered judgment of conviction only for attempted

      murder and dealing in cocaine. A sentencing hearing was held on June 26,

      2019; Neal was sentenced to twenty-five years in the Department of Correction

      for attempted murder and three years for dealing in cocaine, to be served

      concurrently. This appeal followed.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020   Page 4 of 9
                                      Discussion and Decision
[9]    On appeal, Neal contends that the evidence is insufficient to support his

       convictions for dealing in cocaine and attempted murder. When reviewing

       challenges to the sufficiency of evidence, we do not reweigh the evidence nor do

       we reassess the credibility of witnesses. Jones v. State, 783 N.E.2d 1132, 1139

       (Ind. 2003). We look only to the probative evidence supporting the judgment

       and to the reasonable inferences that may be drawn from the evidence in

       determining whether a reasonable trier of fact could conclude that the

       defendant was guilty beyond a reasonable doubt. Id. A verdict may be sustained

       based on circumstantial evidence alone if that circumstantial evidence supports

       a reasonable inference of guilt. Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000).

       Reversal is only appropriate when no reasonable trier of fact could find the

       elements of the crime proven beyond a reasonable doubt. Drane v. State, 867

       N.E.2d 144, 146 (Ind. 2007).


                                              I. Dealing in Cocaine

[10]   Neal argues that the evidence used to support his conviction for dealing in

       cocaine was insufficient because the State did not present evidence that he

       actually possessed cocaine. “A person who knowingly or intentionally

       possesses, with intent to deliver cocaine . . . commits dealing in cocaine . . . a

       Level 5 felony.” Ind. Code § 35-48-4-1. In order to convict Neal of dealing in

       cocaine, the State was required to prove that Neal knowingly possessed cocaine

       with the intent to deliver the cocaine. See id.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020   Page 5 of 9
[11]   Neal is correct that the State did not offer direct, physical evidence in the form

       of the cocaine that Neal intended to sell to Gage; however, circumstantial

       evidence of possession with intent to deliver is sufficient to support the

       conviction. See Stokes v. State, 801 N.E.2d 1263, 1272 (Ind. Ct. App. 2004)

       (affirming conviction for dealing in cocaine based on evidence from which jury

       could reasonably infer defendant possessed cocaine), trans. denied. On appellate

       review, such evidence does not have to overcome every reasonable hypothesis

       of innocence, but need only generate a reasonable inference of guilt. Mills v.

       State, 512 N.E.2d 846, 848 (Ind. 1987).


[12]   The State presented evidence that Neal met the Burger brothers after Darrell

       called Neal and relayed Gage’s request to purchase drugs. Darrell called Neal

       because Neal had sold him cocaine and heroin in the past. The nature of their

       relationship was not disputed by defense counsel at trial. Darrell testified that

       Gage wanted to purchase heroin for $1400. Detective Kronewitter, who

       interviewed Neal in the hospital immediately after the shooting, testified that

       Neal explained he had been “going to [sell] twenty grams of cocaine for $1300”

       and had been robbed. Tr. Vol. IV, p. 32. Neal also told Detective Kronewitter

       where his gun was located.


[13]   Neal admitted that his reason for meeting the Burger brothers was to sell

       cocaine and that cocaine was in his pocket at the time of their meeting. Ex.

       Vol., State’s Ex. 223. Neal also admitted to abandoning the drugs under a

       trashcan with his gun before fleeing the scene. Indeed, based on Neal’s

       information, law enforcement recovered the gun that he hid under a trashcan,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020   Page 6 of 9
       but they did not discover cocaine or other drugs under the trashcan. Neal

       argues that the evidence was insufficient to support his conviction because

       “[no]one ever saw any cocaine.” Appellant’s Br. at 18. The statutory elements

       of the offense however, do not include physical recovery of the controlled

       substance in question; that is to say, nothing precludes conviction for dealing in

       cocaine if the evidence presented—including circumstantial evidence—and

       reasonable inferences that can be drawn from the evidence are sufficient to find

       a defendant guilty beyond a reasonable doubt. Here, the jury could reasonably

       infer, based on Neal’s own admissions and on the circumstantial evidence

       presented, that he knowingly and intentionally possessed cocaine with the

       intent to deliver and sell it to Gage for $1300. Accordingly, we find that this

       evidence was sufficient to support the jury’s determination that Neal possessed

       cocaine with the intent to deliver.


                                             II. Attempted Murder

[14]   Neal also argues that the evidence used to support his conviction for attempted

       murder was insufficient because the State did not present evidence that he had

       the requisite specific intent to kill. To convict Neal of attempted murder, the

       State was required to prove that Neal “acted with the specific intent to kill and

       that he engaged in conduct constituting a substantial step toward the killing of”

       Gage. See Gall v. State, 811 N.E.2d 969, 975 (Ind. Ct. App. 2004); I.C. § 35-42-1-

       1; I.C. § 35-41-5-1. Where typically, the culpability requirement for the attempt

       of a crime is that of the specific crime attempted, for convictions of attempted

       murder our supreme court “has emphasized the importance of requiring specific

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020   Page 7 of 9
       intent to kill . . . despite [] the culpability requirement for murder includ[ing] the

       lesser standard of ‘knowingly.’” Perez v. State, 872 N.E.2d 208, 211 (Ind. Ct.

       App. 2007), trans. denied.


[15]   Specific intent to kill “may be inferred from the intentional use of a deadly

       weapon in a manner likely to cause death.” Reese v. State, 939 N.E.2d 695, 702

       (Ind. Ct. App. 2011), trans. denied. “Discharging a weapon in the direction of a

       victim is substantial evidence from which a jury can infer intent to kill.” Id.


[16]   Here, Neal admitted to Detective Kronewitter that he was armed with a gun

       when he arrived at Frank’s Place, and a gun matching his description was later

       recovered from the scene. Darrell’s testimony was that Neal pointed a weapon

       at Gage’s head immediately upon entering Darrell’s vehicle, and then Neal

       struck Gage on the head with the butt of the gun. Neal admitted to Detective

       Kronewitter that he fired his weapon several times; ballistic evidence showed

       that Neal fired at least seven times based on the recovery of seven shell casings

       that matched the gun found at the scene. Evidence was also presented that

       Gage—who was unable to testify at trial due to the severity of his injuries—

       received an injury to his head, above his eye, with characteristics of a bullet

       wound. Gage was also shot above his waistline on the right side of his body.


[17]   The evidence presented, including Neal’s own admissions, established that Neal

       “deliberately used a deadly weapon in a manner likely to cause death or serious

       injury.” See Bethel v. State, 730 N.E.2d 1242, 1245 (Ind. 2000). He deliberately

       pointed and fired his gun at Gage in a manner likely to cause injury or death to


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020   Page 8 of 9
       Gage. Thus, the evidence presented was sufficient for a jury to reasonably

       conclude Neal acted with the specific intent to kill Gage and that shooting Gage

       constituted a substantial step toward doing so.


                                                 Conclusion
[18]   The evidence presented was sufficient to sustain Neal’s convictions for dealing

       in cocaine and attempted murder. Because the jury could reasonably find the

       elements of each offense proved beyond a reasonable doubt, we affirm the

       judgment of the trial court.


[19]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




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