Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                            FILED
                                                          Aug 22 2012, 8:52 am
court except for the purpose of establishing
the defense of res judicata, collateral                          CLERK
estoppel, or the law of the case.                              of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

DONALD R. SHULER                                GREGORY F. ZOELLER
Barkes, Kolbus, Rife & Shuler, LLP              Attorney General of Indiana
Goshen, Indiana
                                                JOSEPH Y. HO
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL A. AYERS,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 20A03-1201-CR-52
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ELKHART CIRCUIT COURT
                        The Honorable Terry C. Shewmaker, Judge
                             Cause No. 20C01-1106-FA-10



                                     August 22, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
          Following a jury trial, Appellant-Defendant Michael Ayers appeals his conviction

for Class A felony Attempted Murder,1 for which he received a sentence of forty-eight

years in the Department of Correction. Upon appeal, Ayers challenges the sufficiency of

the evidence to support his conviction and claims that his sentence is inappropriate. We

affirm.

                              FACTS AND PROCEDURAL HISTORY

          On May 17, 2011, at approximately 11:50 a.m., Elkhart Police Officer Chris

Snyder responded to a report of a shooting in the Washington Gardens neighborhood of

Elkhart. The shooter was reportedly wearing a black sweatshirt and chasing another

male wearing a red sweatshirt. Upon arriving at the scene, Officer Snyder observed a

male wearing a red sweatshirt lying on the floor with shotgun wounds. The victim, who

was subsequently treated at a hospital for shotgun wounds, was later identified to be

Charles Peete, Jr.

          According to Peete, there had been an altercation the day before at which he, his

friend Mumbles, and a certain Necko Purnell were present, among others totaling

approximately sixty people. Purnell was a friend of Ayers’s. Mumbles and Purnell

apparently fought, after which Peete and Mumbles left the altercation, picked up Peete’s

cousin, and returned to the crowd.                Another fight broke out between Purnell and

Mumbles, which ultimately ended in a standoff.

          The morning of May 17, Peete and Aisha Johnson had observed a white four-door

vehicle with tinted windows drive past them a couple of times and park, at which point
          1
              Ind. Code §§ 35-42-1-1; 35-41-5-1 (2010).


                                                          2
two males jumped out and approached him. Less than two weeks prior, Alyssa Wilcox

had sold Purnell a white four-door vehicle with tinted windows. As Peete walked away

the morning of May 17, a third person jumped out of the car, walked a short distance

before returning to the car for a shotgun, and shot Peete, hitting him in the chest and

stomach. Peete had his hands in the air and was backing away, facing the shooter, at the

time. Peete attempted to run behind a building but was shot again in the legs and twice

in the back. Peete entered his friend Ebony Dye’s apartment and called for help. After

Peete was transported to the hospital, he was presented with a photographic array, from

which he identified Ayers as his shooter.

       Just prior to the shooting, Ayers’s cousin Jimmy Mack, who was staying in an

adjacent apartment building, saw Ayers, Purnell, and Ayers’s brother D’Angelo Daniels

step out of a white four-door vehicle. Ayers was dressed in black. Shortly after the

shooting, Daniels entered the apartment where Mack was staying, as did Purnell and

Ayers. Ayers was holding a large black gun resembling a shotgun. Ayers and Purnell

left shortly thereafter. A white car was seen leaving the area after the shooting.

       Authorities subsequently recovered a shotgun at Mack’s apartment. The shells

recovered from the scene were determined to have been fired from this shotgun. The

shells contained twenty-gauge shot, which, although typically used for hunting birds and

small animals, could kill a deer, especially if shot multiple times.

       Peete suffered multiple injuries as a result of the shootings, including multiple

penetration wounds leaving gunshot pellets inside his body, a collapsed lung, a lacerated

kidney, injuries to his liver and spleen, possible nerve damage, and a fractured hand.

                                              3
Given the number of gunshot wounds he had sustained, Peete was described by his

treating physician to have been “very lucky.” Tr. p. 472.

       On June 27, 2011, the State charged Ayers with Class A felony attempted murder.

At the December 19-21, 2011 trial, Peete and Johnson positively identified Ayers as

Peete’s shooter. Following the jury’s guilty verdict, the trial court entered judgment of

conviction and sentenced Ayers on January 19, 2012, to an executed sentence of forty-

eight years in the Department of Correction. This appeal follows.

                            DISCUSSION AND DECISION

                           I.     Sufficiency of the Evidence

       Ayers first contends that the evidence is insufficient to support his conviction for

attempted murder. Ayers’s challenge is two-part: he argues that (1) the evidence fails

conclusively to point to him as the shooter; and (2) there was an inadequate showing of

specific intent to kill.

       When evaluating the sufficiency of the evidence to support Ayers’s conviction,

we do not reweigh the evidence or judge the credibility of the witnesses. Kien v. State,

782 N.E.2d 398, 407 (Ind. Ct. App. 2003), trans. denied. We consider only the evidence

which supports the conviction and any reasonable inferences which the trier of fact may

have drawn from the evidence. Id. We will affirm the conviction if there is substantial

evidence of probative value from which a reasonable trier of fact could have drawn the

conclusion that the defendant was guilty of the crime charged beyond a reasonable

doubt. Id. It is the function of the trier of fact to resolve conflicts of testimony and to



                                             4
determine the weight of the evidence and the credibility of the witnesses. Jones v. State,

701 N.E.2d 863, 867 (Ind. Ct. App. 1998).

                                  A.     Identification

       Significantly, the uncorroborated testimony of one witness, even the victim, is

sufficient to support a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-73 (Ind.

1991). Here, there was ample evidence, including identification testimony by more than

one witness and substantial circumstantial evidence, to implicate Ayers. Ayers was

identified as the shooter by both the victim, Peete, who made repeated identifications,

and by Johnson, who was at the scene. Ayers’s clothing matched the shooter’s, and he

was seen in a vehicle resembling the getaway car shortly before the shooting. Just after

the shooting, Ayers was in possession of what appeared to be a shotgun in the vicinity of

the shooting, at an apartment where the shotgun used to shoot Peete was ultimately

found. This evidence, and all reasonable inferences therefrom, soundly implicates Ayers

as the shooter. Ayers’s challenge is merely an invitation to reweigh the evidence, which

we decline.

                                  B.     Specific Intent

       Ayers claims that the use of twenty-gauge birdshot demonstrates that he did not

have specific intent to kill. In a prosecution for attempted murder, the State must show a

specific intent to kill. Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002). Intent to kill

may be inferred from the nature of the attack and the circumstances surrounding the

crime. Id. In addition, the trier of fact may infer intent to kill from the use of a deadly

weapon in a manner likely to cause death or great bodily harm. Id.

                                             5
       The record demonstrates that birdshot, while perhaps more generally used to kill

birds, can also kill a deer-sized animal at close range. Of course, even BB guns can be

deadly weapons when used in a manner to inflict serious injury. See Davis v. State, 835

N.E.2d 1102, 1112 (Ind. Ct. App. 2005), trans. denied. Here, Ayers shot Peete at close

range four times, riddling his body, including his chest and abdomen, with pellets. Peete

suffered life-threatening injuries, including a punctured lung, a lacerated kidney, and

liver and spleen injuries. His treating physician described him as “very lucky.”   We are

convinced that there was ample evidence to support a finding of Ayers’s specific intent

to kill Peete.

                                    II.      Sentence

       Ayers additionally claims that his sentence, which was enhanced by eighteen

years, was inappropriately harsh.         Article VII, Sections 4 and 6 of the Indiana

Constitution “‘authorize[] independent appellate review and revision of a sentence

imposed by the trial court.’” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007)

(quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006) (emphasis and internal

quotations omitted)), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007).

Such appellate authority is implemented through Indiana Appellate Rule 7(B), which

provides that the “Court may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, the Court finds that the sentence is

inappropriate in light of the nature of the offense and the character of the offender.” We

exercise deference to a trial court’s sentencing decision, both because Rule 7(B) requires

that we give “due consideration” to that decision and because we recognize the unique

                                              6
perspective a trial court has when making sentencing decisions. Stewart v. State, 866

N.E.2d 858, 866 (Ind. Ct. App. 2007). It is the defendant’s burden to demonstrate that

his sentence is inappropriate. Childress, 848 N.E.2d at 1080.

       Ayers committed a Class A felony, which carries an advisory sentence of thirty

years and a maximum sentence of fifty years. See Ind. Code § 35-50-2-4 (2010). In

imposing an enhanced forty-eight-year sentence, the trial court identified multiple

aggravating factors, including Ayers’s ten prior juvenile cases, one involving robbery;2

the fact that prior efforts to reform him had failed; Ayers’s repeated probation violations

and failure to appear for court; Ayers’s marijuana use; the fact that Ayers shot his victim

four times at close range while the victim fled; the fact that a woman and children were in

the area at the time of the shooting; Ayers’s total lack of remorse;3 and the escalation in

the gravity of Ayers’s offenses.          In appealing the enhancement of his sentence by

eighteen years, Ayers argues that the circumstances of his crime are relatively

unremarkable, that his juvenile history does not involve particularly grave offenses, and

that he was only seventeen at the time of the crime.

       We are satisfied that Ayers’s sentence is not inappropriate. As the trial court

observed, Ayers shot his victim repeatedly, both in the chest and back as the victim

attempted to flee; he expressed total lack of remorse for his actions; his ongoing contact

       2
          Ayers’s juvenile record includes adjudications for marijuana and paraphernalia possession, for
which he received and violated probation; alcohol consumption; Class B felony robbery, for which he
received and violated probation; leaving home without permission; two counts of resisting law
enforcement; and not having a valid license. At the time of the instant offense, Ayers had a charge of
Class C felony robbery pending against him in adult court.
       3
          At the sentencing hearing, Ayers stated, “I don’t feel sorry for what happened to the local
joker[.]” Tr. p. 648.


                                                   7
with the law has left him entirely unreformed; and he placed many persons in danger,

including children, for no apparent reason. While Ayers was only seventeen, there is

nothing tentative or child-like about his violence. The circumstances of Ayers’s crime,

and its demonstration of his volatility and lack of moral character, demonstrate that he

was properly sentenced to an enhanced forty-eight-year term.

      The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.




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