Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                      Jan 27 2014, 7:01 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

MARK K. PHILLIPS                                   GREGORY F. ZOELLER
Boonville, Indiana                                 Attorney General of Indiana

                                                   CHANDRA K. HEIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BRANDON McMANOMY,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )         No. 65A01-1302-CR-62
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE POSEY SUPERIOR COURT
                           The Honorable S. Brent Almon, Judge
                              Cause No.65D01-1103-FA-83


                                        January 27, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Brandon McManomy appeals his conviction of Class A felony attempted murder.1 He

raises three issues, which we consolidate and restate as:

          1.      Whether the evidence was sufficient to support McManomy’s conviction; and

          2.      Whether the trial court erroneously limited the testimony of McManomy’s

                  expert witness.

          We affirm.

                            FACTS AND PROCEDURAL HISTORY

          On February 3, 2011, Posey County Sheriff’s Deputy Daniel Montgomery and Indiana

State Trooper Kyle Compton went to the home of McManomy’s father, Brad, to serve an

arrest warrant on McManomy. Deputy Montgomery told Brad he had a warrant for

McManomy’s arrest. Brad reported McManomy was in the basement and took the officers

there.

          Deputy Montgomery saw McManomy “sitting, laying on the couch and as we come

down, he kind of jumped, stood in the middle of the room.” (Tr. at 130.) McManomy “was

very agitated at the start – yelled at his dad for letting us in the house and I saw him have

something clenched in his fist hiding behind his right leg.” (Id. at 131.) What McManomy

had was a knife, around which he clenched his fist as he continued to yell and sway back and

forth.     As other officers attempted to calm McManomy by talking to him, Deputy

Montgomery unsnapped his Taser. McManomy cut himself in the neck with his knife, and

Deputy Montgomery used his Taser on McManomy. McManomy fell to the floor, then got


1
    Ind. Code § 35-41-5-1 (attempt); Ind. Code § 35-42-1-1(1) (murder).
                                                     2
back up. Deputy Montgomery again used his Taser, but the second shock appeared to have

no effect on McManomy. Deputy Montgomery then placed the Taser on McManomy’s back

and activated it. McManomy fell to the ground, but again stood back up, swinging his knife

at Deputy Montgomery’s neck, face, and chest. McManomy pinned Deputy Montgomery

against a chair. Deputy Montgomery “hit him again with the Taser and dropped and then as

soon as he went to the ground that time me and Compton jumped down there, took the knife

away, Trooper Compton threw it behind us and then we rendered first aid.” (Id. at 134.)

       Deputy Montgomery “saw blood dripping off my chin and puddling underneath my

knees, between my knees and I knew that I was cut.” (Id. at 135.) Deputy Montgomery

sustained lacerations to his face and neck and received thirty-two sutures.

       The State filed a motion in limine to limit the testimony of McManomy’s expert

witness “concerning the intent of [McManomy] or any arresting officer or any opinion

concerning how the use of the Taser would affect [McManomy] in this cause, including any

written report or ‘opinion’ of Dr. Barbara Weakley-Jones.” (Appellant’s App. at 32.) The

trial court granted the motion. A jury found McManomy guilty.

                            DISCUSSION AND DECISION

       1.     Sufficiency of the Evidence

       When we review the sufficiency of evidence supporting any conviction, we do not

reweigh the evidence nor judge the credibility of the witnesses. Arthur v. State, 499 N.E.2d

746, 747 (Ind. 1986). We consider only the evidence favorable to the State, together with all

reasonable inferences drawn therefrom. Id. If there is substantial evidence of probative

                                             3
value supporting each element of the crime charged, we will affirm the conviction. Id.

        A person commits murder when he “knowingly or intentionally kills” another person,

Ind. Code § 35-42-1-1, and a person attempts to commit a crime when “acting with the

culpability required for commission of the crime, [he] engages in conduct that constitutes a

substantial step toward commission of the crime.” Ind. Code § 35-41-5-1.

        McManomy contends the State did not prove he acted with the intent to kill Deputy

Montgomery, and the evidence demonstrated only that he intended to hurt himself. Intent to

kill can be inferred from the use of a deadly weapon in a manner likely to cause death or

great bodily injury. McGee v. State, 699 N.E.2d 264, 265 (Ind. 1998).

        McManomy cut through three layers of Deputy Montgomery’s clothing and slashed

his face twice, resulting in injuries requiring thirty-two stitches. Deputy Montgomery

testified that McManomy started swinging at him with a knife and continued to do so as

McManomy pinned him to a chair. The Deputy was able to block some of McManomy’s

blows, but McManomy continued to swing the knife. There was ample evidence McManomy

directed his knife toward Deputy Montgomery in such a manner that the jury could infer

McManomy intended to kill Deputy Montgomery. See Vance v. State, 620 N.E.2d 687, 690

(Ind. 1993) (evidence sufficient to support attempted murder conviction when intent was

displayed through “knife-wielding” of Vance’s accomplice).2




2
   McManomy suggests his own injuries left him without the ability to form intent to kill. He offers no
authority to support the apparent premise that an injured person cannot intend to kill someone else, and we
decline to so hold.
                                                    4
        2.      Limitation of Expert Testimony

        McManomy’s expert witness, Dr. Barbara Weakley-Jones,3 offered opinions regarding

the effects of a Taser, including:

        A Taser device is a human electro muscular incapacitation device which
        temporarily overrides the control systems of the body to impair muscle control.
         The tasing would make it difficult to impossible for purposeful movement of
        the defendant while the Taser electrodes were attached and still providing
        electrical stimulus. . . . The reports all state that each time [McManomy] was
        tasered, that he fell to the ground, incapacitated for a short period of time and
        then started to stand up, swinging the knife as to keep them away and not
        necessarily approaching the officers and then continued to injure himself.
        After being tasered and loosing so much blood from the neck injury, it would
        be difficult to determine any intent by the defendant to knowingly attempt to
        assault the officer, and during the encounter determine whether the act was
        voluntary or involuntary.

(Exhibit Volume at 1-2.) The trial court excluded that evidence, but McManomy contends it

was admissible under Evidence Rule 702(a), as the doctor was qualified to render that

opinion and it would assist the trier of fact.

        We review evidentiary rulings for an abuse of discretion. Mogg v. State, 918 N.E.2d

750, 755 (Ind. Ct. App. 2009). An abuse of discretion occurs when the trial court’s decision

is clearly against the logic and effect of the facts and circumstances before it. Id. In

determining whether the trial court abused its discretion, we do not reweigh evidence and we

consider conflicting evidence in a light most favorable to the trial court’s ruling. Id.

        Dr. Weakley-Jones’ proffered testimony addressed whether someone experiencing

blood loss and use of a Taser could form criminal intent. The trial court did not err in


3
 The doctor’s name is spelled in different ways throughout the briefs and transcript. We adopt the spelling
used in a letter from Dr. Weakley-Jones to McManomy’s counsel.
                                                    5
limiting her expert testimony. Evidence Rule 704(b) provides: “Witnesses may not testify to

opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of

allegations; whether a witness has testified truthfully; or legal conclusions.” McManomy

attempted to introduce evidence that “after being tasered and loosing [sic] so much blood

from the neck injury, it would be difficult to determine any intent by the defendant to

knowingly attempt to assault the officer.” (App. at 30) (italics omitted). This was

impermissible testimony as to McManomy’s intent, and the trial court did not err in

excluding it. See Moore v. State, 771 N.E.2d 46, 56 (Ind. 2002) (doctor’s opinion as to what

Moore was thinking when he shot a police officer “would have directly reflected on

[Moore’s] intent, guilt, or innocence, and thus was an inadmissible conclusion regarding

intent).” The limitation of the expert’s testimony was not an abuse of discretion.

                                     CONCLUSION

       The State presented sufficient evidence McManomy committed attempted murder

when he attacked Deputy Montgomery with a knife, and the trial court did not abuse its

discretion when it granted the State’s motion in limine to prevent McManomy’s expert from

testifying about McManomy’s intent. Accordingly, we affirm.

       Affirmed.

VAIDIK, C.J., and RILEY, J., concur.




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