MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jun 13 2019, 9:10 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
Jack Quirk                                               Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James T. Cole,                                           June 13, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1339
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable John M. Feick,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         18C04-1211-FA-9



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1339 | June 13, 2019               Page 1 of 9
[1]   James Cole appeals his conviction for Class A Felony Attempted Murder, 1

      arguing that the jury received an erroneous instruction and that the evidence is

      insufficient. Finding no reversible error and sufficient evidence, we affirm.


                                                       Facts
[2]   During the afternoon of November 6, 2012, Cindy Dunn and two tellers were

      working at First Merchants Bank in Muncie. There were also two customers

      inside the bank. Two men with guns, later identified as Cole, who carried an

      assault rifle, and Malcolm Crim, who carried a revolver handgun, entered the

      bank. Dunn hit the panic button.


[3]   Cole and Crim forced everyone to stand in the middle of the bank lobby. Cole

      demanded that Dunn let him behind the locked counter into the teller area; she

      complied and he proceeded to remove money from the teller drawers and put it

      in his backpack. Cole then forced Dunn and one of the tellers to let him into

      the bank vault, where he took more money and put it in his backpack.

      Throughout the robbery, Cole told the victims that if the police showed up,

      there would be casualties. Tr. Vol. III p. 62 (“[h]e had earlier told us that if the

      police showed up, that he would start shooting”), 83 (“[t]hey said that there

      would be casualties” if the police arrived), 97 (“[h]e said that if the police




      1
          Ind. Code §§ 35-42-1-1 (amended 2018), 35-41-5-1 (amended 2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1339 | June 13, 2019   Page 2 of 9
      showed up there would be casualties”), 106 (he said that “there would be

      casualties” if police arrived).


[4]   Cole and Crim exited out of the front door of the bank and got into a maroon

      car. As they tried to flee, they encountered a police car being driven by

      Yorktown Police Officer Ryan Jaromin. Officer Jaromin stopped behind the

      maroon vehicle and immediately, the driver’s side door opened and Cole

      exited, aiming his gun at Officer Jaromin. Officer Jaromin raised his sidearm

      and fired; he then exited his police vehicle, ducking down and seeking cover

      behind a nearby tree. Cole proceeded to point his rifle and fire eight times at

      Officer Jaromin, who could hear the bullets flying by him as he ran. The

      customers and employees inside the bank watched as Cole fired his gun at the

      officer and the police car. One customer, who was in her vehicle in the bank

      drive through lane with her children, testified that “[Cole] jumped out of the

      car [and] was walking down this way and he kept turning back and firing

      towards the police car right here. And he’d walk a little bit further, and then

      he’d fire some more, and then he walked a little bit further . . . .” Id. at 116.


[5]   Yorktown Police Officer Jeff Wulff arrived at the scene to assist Officer

      Jaromin. Cole tried to steal a car from a passerby to escape, but he was

      unsuccessful. Officer Wulff and Cole engaged in a shootout, and Officer Wulff

      was ultimately able to subdue and arrest Cole. The officers found Crim inside

      the maroon vehicle and arrested him.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1339 | June 13, 2019   Page 3 of 9
[6]   On March 14, 2012, the State charged Cole with Class A felony attempted

      murder, Class B felony conspiracy to commit robbery, Class B felony armed

      robbery, three counts of Class B felony criminal confinement, and Class B

      felony attempted carjacking. At some point after Cole was released on bail, he

      absconded to Colombia and failed to appear in court.2 After that, the State

      added two counts of Level 6 Felony failure to appear.


[7]   Cole’s jury trial took place on February 26-March 1, 2018. The trial court

      instructed the jury on the State’s attempted murder charge and the elements of

      that crime as follows:


                 This is a criminal case brought by the State of Indiana against
                 James T. Cole. . . .


                 Omitting the formal parts, the information for Count 1 reads as
                 follows:


                 The undersigned says that on or about November 6, 2012 in
                 Delaware County, State of Indiana, James T. Cole did attempt to
                 commit the crime of Murder, which is defined as to knowingly
                 kill another human being, namely: Ryan Jaromin, by engaging in
                 conduct, to-wit: knowingly fired a gun at Ryan Jaromin, with the
                 intent to kill, which conduct constituted a substantial step toward
                 the commission of said crime of Murder . . . .


                 The crime of Attempted Murder is defined by law as follows:




      2
          Cole was later extradited back to the United States. Tr. Vol. IV p. 83.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1339 | June 13, 2019    Page 4 of 9
        A person attempts to commit a murder when, acting with the
        specific intent to kill another person, he engages in conduct that
        constitutes a substantial step toward killing that person.


        Before you may convict the Defendant of attempted murder, the
        State must have proven each of the following beyond a
        reasonable doubt;


        1. The Defendant


        2. Acting with specific intent to kill Ryan Jaromin


        3. Fired a gun


        4. [W]hich was conduct constituting a substantial step toward the
        commission of the intended crime of killing Ryan Jaromin.


        If the State failed to prove each of these elements beyond a
        reasonable doubt, you must find the Defendant not guilty of
        Attempted Murder, a Class A felony as charged in Count 1.


Appellant’s App. Vol. III p. 109 (preliminary instruction), 151 (final

instruction). Cole objected to the final instruction because it included the term

“knowingly” in the second paragraph. The trial court overruled the objection

because “I don’t think I have the authority to change the charging information.

And the elements on that same page, I think handle” specific intent properly.

Tr. Vol. IV p. 117-18.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1339 | June 13, 2019   Page 5 of 9
[8]    The jury found Cole guilty as charged. On May 3, 2018, the trial court

       sentenced Cole to an aggregate term of ninety-two and one-half years

       imprisonment. Cole now appeals.


                                    Discussion and Decision
[9]    Cole raises two arguments on appeal: (1) the jury instruction setting forth the

       State’s charging language with respect to the attempted murder charge was

       erroneous; and (2) the evidence is insufficient to support the attempted murder

       conviction.


                                          I. Jury Instruction
[10]   First, with respect to the jury instruction, the purpose of jury instructions is “‘to

       inform the jury of the law applicable to the facts without misleading the jury

       and to enable it to comprehend the case clearly and arrive at a just, fair, and

       correct verdict.’” Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010)

       (quoting Murray v. State, 798 N.E.2d 895, 899-900 (Ind. Ct. App. 2003)). We

       will reverse a trial court with respect to jury instructions only if the instructions

       misstate the law or otherwise mislead the jury. Id. We will consider jury

       instructions as a whole and in reference to each other, not in isolation. Id.


[11]   Jury instructions that set forth the elements of attempted murder must inform

       the jury that to find the defendant guilty, the State must have proved beyond a

       reasonable doubt that the defendant intended to kill the victim and took a

       substantial step towards meeting that goal. Clay v. State, 766 N.E.2d 33, 36

       (Ind. Ct. App. 2002). In other words, the instruction “must include an
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1339 | June 13, 2019   Page 6 of 9
       explanation that the act must have been done with the specific intent to kill,”

       Sanders v. State, 764 N.E.2d 705, 710 (Ind. Ct. App. 2002), and “should make

       no mention of the mens rea of ‘knowingly,’” Booker v. State, 741 N.E.2d 748,

       751 (Ind. Ct. App. 2000).


[12]   Here, the jury instruction does, indeed, make mention of the mens rea of

       knowingly—but it does so in the context of relaying the State’s charging

       language, which stated that murder “is defined as to knowingly kill another

       human being . . . .” Appellant’s App. Vol. III p. 151. The instruction makes it

       clear that it was merely restating the charge and does not imply that

       “knowingly” is an element of attempted murder.


[13]   To the extent that this language in the instruction could be confusing, the

       instruction goes on to clearly and specifically set forth the elements of

       attempted murder. It twice states that the State must prove that Cole acted

       “with the specific intent to kill,” and states that if the State fails to prove each

       element beyond a reasonable doubt, the jury must find Cole not guilty. Id.

       Under these circumstances, we find that the instructions as a whole did not

       mislead the jury or misstate the law, and we decline to reverse on this basis.3




       3
[1]      We also note that even if the instruction had been erroneous, we would have found it harmless. See
       Randolph v. State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004) (noting that a jury instruction error is harmless
       where the conviction is clearly sustained by the evidence and the instruction would not likely have impacted
       the jury’s verdict). The record is replete with evidence of Cole’s specific intent to kill Officer Jaromin, as will
       be explored in the next section.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1339 | June 13, 2019                           Page 7 of 9
                                             II. Sufficiency
[14]   Next, Cole argues that the evidence is insufficient to support his attempted

       murder conviction. In reviewing a challenge to the sufficiency of the evidence,

       we will neither reweigh the evidence nor assess witness credibility. McHenry v.

       State, 820 N.E.2d 124, 126 (Ind. 2005). We will examine the evidence in a light

       most favorable to the verdict and will affirm unless no reasonable factfinder

       could find the elements proved beyond a reasonable doubt. Id.


[15]   To convict Cole of attempted murder, the State was required to prove beyond a

       reasonable doubt that he, acting with the specific intent to kill Officer Jaromin,

       engaged in conduct constituting a substantial step toward the commission of

       murder. I.C. §§ 35-42-1-1, 35-41-5-1. Cole’s only argument on appeal is that

       the State did not prove beyond a reasonable doubt that when he fired the gun,

       he was acting with the specific intent to kill Officer Jaromin. In particular, he

       denies that he was shooting “at” the officer and instead claims that he was

       haphazardly firing his weapon to protect himself from Officer Jaromin, who

       fired his weapon first.


[16]   Multiple witnesses testified that during the robbery, Cole stated that if the police

       arrived at the bank, he would begin shooting and that there would be casualties.

       Then, when Cole actually had the confrontation with Officer Jaromin, multiple

       witnesses testified that he pointed an assault rifle at the officer and fired eight

       times. As Officer Jaromin ran for cover, he could hear bullets flying by him.

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


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1339 | June 13, 2019   Page 8 of 9
       manner likely to cause death or serious injury.” Henley v. State, 881 N.E.2d 639,

       652 (Ind. 2008) (also noting that “firing a gun in the direction of an individual is

       substantial evidence from which a jury may infer intent to kill”). We find this

       evidence sufficient to support Cole’s conviction for Class A felony attempted

       murder.


[17]   The judgment of the trial court is affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1339 | June 13, 2019   Page 9 of 9
