MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                FILED
this Memorandum Decision shall not be                                            Aug 24 2020, 10:39 am
regarded as precedent or cited before any
court except for the purpose of establishing                                          CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
the defense of res judicata, collateral                                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jerry T. Drook                                           Curtis T. Hill, Jr.
Marion, Indiana                                          Attorney General of Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William Robert McCarty,                                  August 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-172
        v.                                               Appeal from the Grant Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark Spitzer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         27C01-1903-MR-5



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-172 | August 24, 2020                       Page 1 of 9
                                          Statement of the Case
[1]   William McCarty (“McCarty”) appeals his conviction, following a jury trial, for

      attempted murder.1 McCarty argues that there was insufficient evidence to

      support his conviction. Concluding that there was sufficient evidence, we

      affirm his conviction.


[2]   We affirm.2


                                                          Issue
          Whether sufficient evidence supports McCarty’s attempted murder conviction.




      1
       IND. CODE §§ 35-42-1-1; 35-41-5-1. McCarty was also convicted of Level 5 felony reckless homicide, but he
      does not challenge that conviction.
      2
        We note that our review of this case was impeded and delayed because the record on appeal did not
      include: (1) the Exhibit volumes that contained the more than 200 exhibits in this case; and (2) the
      transcription of the parties’ closing arguments and final instructions, which are part of the proceedings before
      the trial court. Our appellate rules provide that the record on appeal “shall consist of the Clerk’s Record and
      all proceedings before the trial court[.]” Ind. Appellate Rule 27 (emphases added). Additionally, our appellate
      rules clearly set out the corresponding duties of the trial court reporter and trial court clerk when preparing
      and submitting the Clerk’s Record, transcript, and exhibits to our Court. Due to the above deficiencies in the
      preparation and submission of the record on appeal, we were required to send an order to the trial court clerk
      and trial court reporter to obtain the missing parts of the record. When the Exhibit volumes were submitted
      without pagination, our Court sent an additional order directing the court reporter and clerk to resubmit the
      Exhibit volumes in accordance with Appellate Rule 29 and Appendix A of the appellate rules. Upon
      receiving the resubmitted Exhibit volumes and a supplemental transcript containing the requested
      transcription of the trial, we were able to complete our appellate review. In hopes of avoiding unnecessary
      delays in future appeals, we remind trial court reporters and trial court clerks that the appellate rules setting
      out the duties of the trial court reporter and trial court clerk when preparing and submitting the Clerk’s
      Record, transcript, and exhibits are not merely suggestions but are mandatory.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-172 | August 24, 2020                        Page 2 of 9
                                                     Facts
[3]   In early March 2019, McCarty asked Michael Lawrence (“Lawrence”) if he

      could borrow a gun. Lawrence let McCarty borrow a model twenty-three

      Glock forty-caliber semi-automatic handgun (“the Glock”). When Lawrence

      loaned the Glock to McCarty, the gun was loaded with two magazines, each

      holding twelve or thirteen bullets.


[4]   On March 7, 2019, McCarty and his girlfriend, Ariel Parker (“Parker”), were

      visiting with McCarty’s friend, Christa Kelly (“Kelly”), at her trailer in a trailer

      lot in Grant County. Jonathan Lovell (“Lovell”), who lived in that same trailer

      lot, was also socializing with the group. During the evening, Lovell made a

      deal with McCarty and agreed that he would sell or trade his tennis shoes to

      McCarty. At the end of the evening, Lovell, however, changed his mind and

      told McCarty that he no longer wanted to “come off” or “sell” his shoes. (Tr.

      Vol. 2 at 44). When Lovell tried to leave Kelly’s trailer, McCarty and Lovell

      “got into an argument over [Lovell] wanting to take [his] shoes back and kinda

      scuffled through out the door[,] and then [they] argued all the way down the

      street[.]” (Tr. Vol. 2 at 46). Lovell went home to his trailer, and McCarty

      “went on about his way.” (Tr. Vol. 2 at 46).


[5]   The following day, Kelly contacted Lovell about the shoes. Kelly asked Lovell

      if he was “gonna still make the deal” and “come up off the shoes[,]” and he told

      her “no.” (Tr. Vol. 2 at 46).




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-172 | August 24, 2020   Page 3 of 9
[6]   The next day, on March 9, just prior to 11:30 p.m., Kelly contacted Lovell

      multiple times by phone and text to tell him that he should have given his tennis

      shoes to McCarty. When Kelly called Lovell, she told him that “it was the

      wrong mistake” for him not to give the shoes to McCarty. (Tr. Vol. 2 at 47).

      After receiving Kelly’s messages, Lovell went outside on his trailer porch to

      smoke a cigarette. Lovell’s grandmother went on the porch to check on him.

      As Lovell’s grandmother started to open the door to go back inside, Lovell saw

      McCarty drive up to Lovell’s trailer. McCarty, who was driving his girlfriend’s

      car, had the car’s lights turned off. Kelly, who was a passenger in the car,

      “scream[ed] out the window [that] [Lovell] shoulda came up off the shoes[.]”

      (Tr. Vol. 2 at 48). McCarty told Kelly to lean back, and he then took the

      Glock, fired multiple shots at Lovell, and then drove away from the scene.


[7]   Lovell heard “three or four shots[,]” felt a burning sensation in his chest, arm,

      and leg, and “went into a shock.” (Tr. Vol. 2 at 50). Lovell heard the glass on

      the door shatter and saw his grandmother, who had been behind him at the

      door, fall to the ground. A bullet hit Lovell’s grandmother’s face near her eye

      and exited out of the back of her head. Lovell’s grandmother died of a result of

      the gunshot wound to her head. Lovell’s thirteen-year-old brother called the

      police. Multiple officers from the Marion Police Department arrived on the

      scene. One of the officers saw that the bullet wound on Lovell’s leg was “near”

      an “artery.” (Tr. Vol. 1 at 49). The officer then put a tourniquet on Lovell’s leg

      to help stop the bleeding before EMTs transported Lovell to the hospital.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-172 | August 24, 2020   Page 4 of 9
[8]   After McCarty and Kelly fled the scene, they went to Lawrence’s house, where

      they “were acting real strange[.]” (Tr. Vol. 1 at 225). Upon McCarty’s request,

      Lawrence picked up Parker and brought her back to Lawrence’s house. When

      Lawrence and Parker returned, McCarty and Kelly were listening to a police

      scanner. McCarty told Lawrence that he had shot at some guy and that he

      knew he had hit him. McCarty also told Lawrence that he had used

      Lawrence’s Glock and that he had the casings from the shots he had fired.

      McCarty gave Lawrence the Glock, which had one magazine in it.

      Additionally, McCarty told Parker that he had shot at Lovell and that he had

      been driving her car when he did it. McCarty and Kelly were “frantic” and

      “nervous” as they were “tryin’ to figure out what to do with the car, what to do

      with the gun[,]” and “where to hide[.]” (Tr. Vol. 1 at 200, 229).


[9]   The following day, McCarty called his cousin, Elicia Bockover (“Bockover”),

      and told Bockover that he had an emergency and that he needed a ride. After

      Bockover picked up McCarty and Kelly, McCarty told Bockover that he needed

      to get out of town. Bockover, who had seen on social media that two people

      had been shot at the trailer park, wondered if McCarty had been involved.

      Bockover urged McCarty to “please tell [her] he wasn’t involved in what [she]

      had seen on the news[,]” and he responded, “I told that motherf*cker not to

      play with me.” (Tr. Vol. 2 at 15, 16). When Bockover asked McCarty what

      had happened, “he said that he told Christa to sit back and he just pulled the

      trigger[.]” (Tr. Vol. 2 at 17-18). McCarty also told Bockover that he did not

      leave any evidence at the scene and that “all the shell casings came back into


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-172 | August 24, 2020   Page 5 of 9
       the car.” (Tr. Vol. 2 at 18). Additionally, McCarty told Bockover that “he let

       his anger get the best of him.” (Tr. Vol. 2 at 18).


[10]   During a police investigation, the police found two bullets at Lovell’s trailer.

       Police also recovered the Glock from Lawrence. The Glock contained one

       magazine with six live rounds left in it.


[11]   The State ultimately charged McCarty with murder, Level 1 felony attempted

       murder, and Level 5 felony battery by means of a deadly weapon.3 In

       November 2019, the trial court held a four-day jury trial. The State’s witnesses

       testified to the facts as set forth above. The final jury instructions included

       instructions for Level 5 felony reckless homicide as a lesser included offense to

       murder and Level 5 felony criminal recklessness as a lesser included offense to

       attempted murder. The jury found McCarty guilty of Level 5 felony reckless

       homicide as a lesser included of murder, Level 1 felony attempted murder, and

       Level 5 felony battery by means of a deadly weapon.


[12]   During the sentencing hearing, the trial court vacated the battery conviction due

       to double jeopardy concerns. The trial court imposed a six (6) year sentence for

       McCarty’s reckless homicide conviction and a forty (40) year sentence, with

       thirty-eight (38) years executed and two (2) years suspended to probation, for

       his attempted murder conviction. The trial court ordered the sentences to be




       3
        The battery charge was for McCarty’s act of shooting and striking Lovell. The State had also initially
       charged McCarty with Level 1 felony conspiracy to commit murder but dismissed that charge prior to trial.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-172 | August 24, 2020                  Page 6 of 9
       served consecutively. McCarty now appeals only his attempted murder

       conviction.


                                                   Decision
[13]   McCarty argues that the evidence was insufficient to support his attempted

       murder conviction.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

       and citations omitted) (emphasis in original).


[14]   A person who “knowingly or intentionally kills another human being” commits

       murder, a felony. I.C. § 35-42-1-1(1). To prove that a defendant has attempted

       to commit a crime, the State must typically show that the defendant engaged in

       conduct that constitutes a substantial step toward the commission of the

       attempted crime, while acting with the same culpability required for that crime.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-172 | August 24, 2020   Page 7 of 9
       I.C. § 35-41-5-1. “A conviction for attempted murder requires proof of a

       specific intent to kill.” Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). The

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

       manner likely to cause death or serious injury.” Intent to kill may also be

       inferred from the “nature of the attack and circumstances surrounding the

       crime.” Corbin v. State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006). Moreover,

       “firing a gun in the direction of an individual is substantial evidence from which

       a jury may infer intent to kill.” Henley, 881 N.E.2d at 652.


[15]   McCarty contends that the State failed to prove that he acted with the requisite

       specific intent to kill Lovell. Specifically, he asserts that “the State did not

       prove that firing of a handgun towards Lovell and hitting Lovell in the arm and

       leg with two bullets was proof beyond a reasonable doubt that McCarty acted

       with specific intent to kill Lovell.” (McCarty’s Br. 14). We disagree.


[16]   Here, the State presented evidence that McCarty was angry at Lovell for

       declining to sell or trade his shoes to McCarty. McCarty drove up to Lovell’s

       trailer with his car’s lights turned off, pointed his Glock at Lovell, and fired the

       gun multiple times at Lovell, wounding him. Lovell was shot in his arm, leg,

       and chest. After McCarty fled the scene, he admitted to others that he had shot

       at Lovell and stated that he had “told that motherfucker [Lovell] not to play

       with [him].” (Tr. Vol. 2 at 15, 16).


[17]   Here, both parties thoroughly argued the specific intent element during closing

       arguments. The jury, as finder of fact, determined that the State had met its


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-172 | August 24, 2020   Page 8 of 9
       burden of proving beyond a reasonable doubt that McCarty had the specific

       intent to kill Lovell. McCarty’s argument is simply a request to reweigh the

       evidence and reassess the jury’s credibility determination, which we will not do.

       See Drane, 867 N.E.2d at 146. Accordingly, we affirm McCarty’s attempted

       murder conviction. See, e.g., Perez v. State, 872 N.E.2d 208, 214 (Ind. Ct. App.

       2007) (affirming a defendant’s attempted murder conviction), trans. denied.4


[18]   Affirmed.


       Bradford, C.J., and Baker, Sr.J., concur.




       4
         We also reject McCarty’s suggestion that the evidence was insufficient based on inconsistent verdicts. He
       proposes that the jury’s reckless homicide verdict for his killing of Lovell’s grandmother would “call[] into
       question whether the State’s proof of specific intent to kill when firing a gun at Lovell was sufficient for the
       jury to conclude McCarty was guilty of attempted murder in relation to Lovell.” (McCarty’s Br. 15).
       However, “[j]ury verdicts in criminal cases are not subject to appellate review on grounds that they are
       inconsistent, contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010).

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-172 | August 24, 2020                         Page 9 of 9
