Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                   Sep 17 2012, 8:57 am
court except for the purpose of
establishing the defense of res judicata,                          CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
collateral estoppel, or the law of the case.                            tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MATTHEW G. GRANTHAM                             GREGORY F. ZOELLER
Bowers, Brewer, Garrett & Wiley, LLP            Attorney General of Indiana
Huntington, Indiana
                                                BRIAN REITZ
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CORY J. PINKERTON,                              )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 35A02-1202-CR-94
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HUNTINGTON CIRCUIT COURT
                          The Honorable Thomas M. Hakes, Judge
                              Cause No. 35C01-1005-FC-131



                                    September 17, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant      Cory   J.   Pinkerton   appeals   the   five-year   sentence

enhancement that was imposed under Indiana Code section 35-50-2-11 (the firearm

enhancement statute) subsequent to his conviction for Reckless Homicide,1 a class C

felony. Specifically, Pinkerton contends that there was insufficient evidence for the jury

to find that he knowingly or intentionally used a firearm in the commission of the

underlying offense.          Concluding that there was sufficient evidence, we affirm the

judgment of the trial court.

                                               FACTS

          On the evening of May 14, 2010, Pinkerton, Donald “J.R.” Barton, Jr., Derek

Farmer, and Pinkerton’s roommates, Ray Johnson and Jared Chapin, gathered at

Pinkerton’s residence as the close friends often did. Around 9:00 p.m., they began

drinking shots of spiced rum. When they finished the first half-gallon of rum, Pinkerton

and Farmer left the residence and purchased a second half-gallon. When they returned,

the group continued to take shots.

          Sometime earlier in the day, Barton, who had been regularly staying at the home

except when he exercised parenting time, asked Pinkerton to promise “not to let him

leave no matter what happened.” Tr. p. 625. Barton was going through a divorce at the

time, and he had become increasingly agitated throughout the day about conversations he

had been having on Facebook. Later that evening while Barton, Pinkerton, Johnson, and




1
    Ind. Code § 35-42-1-5.
                                                 2
Farmer were outside on the front porch smoking cigarettes, Barton told the others they

were like his brothers, and they shared a group hug.

       That same night at approximately 2:30 a.m., Barton became “extremely irritated

and insistent that he was going to leave and . . . go get in trouble.” Id. at 626. Pinkerton

and Johnson each tried to convince Barton to stay, but Barton was “completely insistent

he was going.” Id. Believing that he could get Barton to calm down and stay if he

showed Barton that he was being “really stupid,” Pinkerton went upstairs and retrieved

his shotgun, which he always kept loaded, from under his bed. Id. He brought the gun

downstairs, held it over his shoulder so that it was pointed away from everyone, and told

Barton, “all right[,] if you’re going to do something stupid and get in trouble[,] I’m going

with you.” Id. According to Pinkerton, the shotgun was “never supposed to be anything

more than a prop.” Id.

       While Pinkerton was holding the shotgun over his shoulder, he and Barton

continued to discuss in loud voices whether Barton should leave the home. Although

their discussion was loud, they were not angry nor were any threats made. Rather,

according to Chapin, the volume resulted merely from “just . . . drunk people

communicating.” Tr. p. 275. Chapin, who was in another room and trying to have a

conversation on his cellular telephone, asked Pinkerton and Barton to be quiet so that

their neighbors wouldn’t call the police. When he saw Pinkerton holding the shotgun, he

told Pinkerton that the gun “[didn’t] need to be out” before going back to the other room

and closing the door. Id. at 262.

                                             3
          Johnson also told Pinkerton that “the shotgun needed to be put up” and that neither

Pinkerton nor Barton should go anywhere. Id. at 193. When Pinkerton and Barton

ignored him and continued their discussion, Johnson left the home out the back door and

went outside. On his way out, he asked Pinkerton to point the gun at the floor so that he

could pass behind him, and Pinkerton complied.

          Once Johnson was outside, Barton grabbed the barrel of the shotgun and “pulled it

up towards his face.” Tr. p. 627. He told Pinkerton, “I might as well just fu**ing do this,

it’ll make everything better.” Id. Pinkerton pulled the shotgun away and aimed it back

toward the floor. Barton then grabbed for the barrel of the shotgun with both hands, and

this time, he placed the barrel into his mouth. Farmer, who was sitting at a computer

desk approximately three feet away from Barton and Pinkerton, observed Barton with

control over the barrel of the gun and noted that Barton looked “almost . . . distraught.”

Id. at 238.        Less than twenty seconds later, the gun discharged, killing Barton

instantaneously.

          After telling the others to leave, Pinkerton called the police. He tossed the now

unloaded shotgun out onto the front porch and waited for the police to arrive. Pinkerton

was arrested and read his Miranda2 rights.

          Detective Sergeant Matt Hughes of the Huntington City Police Department

interviewed Pinkerton, who waived his right to have counsel present.               Pinkerton

explained what had happened, but he was uncertain about how the gun discharged. He

2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                               4
first told Detective Hughes that when Barton grabbed the gun the second time, Barton

grabbed the barrel with his right hand and reached toward the stock with his left hand.

Pinkerton said that in order for the shotgun to fire, the hammer needed to be pulled back

and the trigger needed to be pulled. Pinkerton indicated that he had not pulled the

hammer back. He told Detective Hughes that the hammer might have been pulled back

by Barton when he reached for the stock and that the trigger might also have been struck

by Barton at that time. Pinkerton said that “he didn’t remember exactly what happened”

and “that it all happened really fast and that he was really intoxicated.” Tr. p. 334.

       When Detective Hughes explained to Pinkerton that it seemed improbable that

Barton both cocked the hammer and pulled the trigger while he was also holding the

barrel of the gun up to his face, Pinkerton agreed that this version “would not be very

likely.” Id. at 340. Pinkerton then said it was possible that he had cocked the hammer

when he was walking down the stairs with the shotgun or when he had pointed the

shotgun toward the floor, but he stated he couldn’t remember if he had in fact cocked the

hammer or not. He stated he thought it was possible that Barton had cocked the hammer

when he had grabbed the gun the second time. Regarding who pulled the trigger,

Pinkerton told Detective Hughes “that he was extremely intoxicated . . . and that all the

details were very fuzzy to him.” Id. at 341. He also stated that “apparently what he

remembered happening didn’t happen.” Id.

       When asked whether it was likely that it was Pinkerton who caused the trigger to

be pulled, Pinkerton replied, “[T]hat’s probably exactly what happened.” Id. at 344. And

                                              5
when asked why he would let Barton place the loaded shotgun to his mouth a second

time, Pinkerton responded “that he really didn’t have a good answer for that” and “that he

was very intoxicated.” Id. at 345. He acknowledged that he didn’t resist Barton placing

the gun to his mouth the second time.

       At trial, the State offered testimony from several experts, including the crime

scene investigator who processed Pinkerton’s residence as a crime scene, the pathologist

who conducted Barton’s autopsy, a forensic firearms examiner, forensic scientists from

the Indiana State Police biology DNA and latent fingerprint identification units, and a

bloodstain pattern interpretation expert.    Through these experts, the State presented

uncontroverted testimony that Barton’s cause of death was “a gunshot wound to the

mouth[,]” that Barton also had “burn-type injuries” to his left hand “caused by holding

the barrel as the weapon was shot[,]” that the high impact blood spatter found on the top

of Barton’s right hand originated from the injuries to Barton’s left hand, that Barton’s

right hand “had to be in close proximity to . . . the front of his face” at the time of

discharge in order for the blood spatter to have reached his right hand, and that it would

have been “impossible” for Barton’s right hand to have been near the trigger when the

shotgun discharged. Tr. p. 505-06, 605, 608. Moreover, the State presented evidence

that the trigger of Pinkerton’s shotgun required approximately seven to seven and a

quarter pounds of applied pressure to fire, that the shotgun could not be characterized as

having a “light trigger[,]” that there was no indication that the shotgun would fire without

the hammer being at least partially cocked and the trigger pulled, and that no DNA

                                             6
evidence or fingerprints were found on either the hammer or the trigger of the shotgun

that could assist in identifying who caused the shotgun to discharge. Id. at 514.

       Upon conclusion of the evidence, the jury found Pinkerton guilty of reckless

homicide as a class C felony. The second phase of the trial, which concerned the firearm

enhancement, was conducted immediately following the reading of the jury’s verdict. No

additional evidence was presented. After hearing argument from both sides, the jury

determined that the State proved the firearm enhancement beyond a reasonable doubt.

       On January 9, 2012, Pinkerton was sentenced to four years for the reckless

homicide conviction, with the entire four-year sentence suspended to probation.

Pinkerton’s sentence was then enhanced by a mandatory term of five years in accordance

with the firearm enhancement statute to be executed in the Indiana Department of

Correction. Alleging insufficient evidence on the enhancement finding, Pinkerton now

appeals.

                             DISCUSSION AND DECISION

       Pinkerton’s sole contention on appeal is that the evidence is insufficient to support

the firearm enhancement. Specifically, Pinkerton claims that the evidence presented by

the State was insufficient to support the jury’s finding that Pinkerton “knowingly or

intentionally used a firearm in the commission of [reckless homicide]” because “even the

State acknowledges that [Pinkerton] did not intentionally pull the trigger.” Appellant’s

Br. p. 4, 9.



                                             7
      In reviewing claims challenging the sufficiency of the evidence, “we neither

reweigh the evidence nor judge the credibility of the witnesses.” Prickett v. State, 856

N.E.2d 1203, 1206 (Ind. 2006). Rather, we consider only the evidence favorable to the

judgment and any reasonable inferences that can be drawn from such evidence. Bailey v.

State, 907 N.E.2d 1003, 1005 (Ind. 2009). We will affirm unless no reasonable trier of

fact could find the required elements proved beyond a reasonable doubt. Cooper v. State,

940 N.E.2d 1210, 1213 (Ind. Ct. App. 2011).

      The reckless homicide statute provides that “[a] person who recklessly kills

another human being commits reckless homicide, a Class C felony.” Ind. Code § 35-42-

1-5. The firearm enhancement statute provides, in relevant part:

      (a) As used in this section, “firearm” has the meaning set forth in [Indiana
      Code section] 35-47-1-5.

      (b) As used in this section, “offense” means:

          (1) A felony under [Indiana Code section] 35-42 that resulted in death
          or serious bodily injury. . . .

      (e) If the jury . . . finds that the state has proved beyond a reasonable doubt
      that the person knowingly or intentionally used a firearm in the commission
      of the offense, the court may sentence the person to an additional fixed term
      of imprisonment of five (5) years.

Ind. Code § 35-50-2-11.

      As noted above, Pinkerton alleges that without proof that he intentionally pulled

the trigger, the evidence was insufficient to prove the sentencing enhancement beyond a

reasonable doubt. However, the charging information for the sentencing enhancement


                                            8
did not allege that Pinkerton “intentionally” used a firearm; rather, it alleged that

Pinkerton “knowingly used a firearm when he committed the offense of Reckless

Homicide.” Appellant’s App. p. 58 (emphasis added). Moreover, this court has held that

pulling the trigger to discharge a firearm is not the only way that a firearm can be “used.”

See Daniels v. State, 957 N.E.2d 1025, 1030 (Ind. Ct. App. 2011) (defining “use” of a

weapon to mean “brandishing, displaying, bartering, striking with, and most obviously,

firing or attempting to fire, a firearm” and holding that the defendant’s display of a gun

tucked into his waistband was sufficient evidence that the defendant used the gun); see

also Nicoson v. State, 938 N.E.2d 660, 665 (Ind. 2010) (discussing the “difference

between possessing a firearm and using it” and concluding that the defendant used a

firearm when he “discharge[d] the weapon as a warning, aim[ed] it at other human

beings, and brandishe[d] it throughout the whole encounter”).

       In the present case, the evidence most favorable to the jury’s determination is that

Pinkerton, while intoxicated, retrieved the shotgun from his bedroom for the express

purpose of brandishing it to cause Barton to change his mind about leaving the home.

Although he was asked twice by his friends to put the gun away, Pinkerton ignored these

requests and continued to display the shotgun. Even after Barton grabbed the shotgun

and pulled it to his face such that Pinkerton had to pull it away, Pinkerton still did not

take the shotgun back to his bedroom. In fact, Pinkerton allowed Barton to place the

loaded shotgun to his mouth a second time. Finally, one of the State’s experts testified

that it would have been impossible for Barton to have pulled the trigger. From this

                                             9
evidence, a reasonable trier of fact could have concluded that Pinkerton knowingly

“used” the shotgun during the commission of the reckless homicide. Thus, we cannot say

that the evidence was insufficient to support the firearm enhancement.

      The judgment of the trial court is affirmed.

ROBB, C.J., and BRADFORD, J., concur.




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