MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                            Mar 23 2018, 9:44 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
John T. Wilson                                           Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William Martez Wills,                                    March 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A04-1704-CR-933
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         48C03-1603-F1-633



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018             Page 1 of 19
                               Case Summary and Issues
[1]   Following a jury trial, William Wills was convicted of two counts of attempted

      murder, a Level 1 felony; attempted robbery resulting in serious bodily injury, a

      Level 2 felony; battery by means of a deadly weapon, a Level 5 felony; and

      carrying a handgun without a license, a Class A misdemeanor. Wills also

      pleaded guilty to unlawful possession of a firearm by a serious violent felon, a

      Level 4 felony. Wills now appeals his convictions, raising the following issues

      for our review: 1) whether the trial court abused its discretion in admitting

      evidence; 2) whether there is sufficient evidence to support his convictions for

      attempted murder and battery by means of a deadly weapon; 3) whether Wills’

      convictions for attempted murder and attempted robbery violate Indiana’s state

      constitutional prohibition against double jeopardy; and 4) whether prosecutorial

      misconduct occurred and whether that conduct amounts to fundamental error.

      Concluding any error in the admission of evidence is harmless, there is

      sufficient evidence to support Wills’ convictions, and the prosecution did not

      commit misconduct, but that his convictions for attempted murder and

      attempted robbery resulting in serious bodily injury violate principles of double

      jeopardy, we affirm in part and reverse and remand in part.



                            Facts and Procedural History
[2]   In March of 2016, Daniel Shannon possessed around four ounces of marijuana

      that he wanted to sell. Shannon’s friend, Madison Thomas, connected him



      Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 2 of 19
      with K.J. McCarter, a potential buyer. After McCarter agreed to buy the

      marijuana from Shannon, Thomas set up a meeting to facilitate the transaction.


[3]   On March 5, 2016, the day before meeting with Shannon and Thomas to

      purchase marijuana, McCarter discussed the arrangement with his friend,

      Wills. Because McCarter owed Wills money, Wills told McCarter, “[w]e are

      going to rob this bi*** and your [sic] going to set it up.” Transcript, Volume II

      at 225. McCarter agreed to text Wills the details of when and where the deal

      would occur so he could be present.


[4]   On March 6, 2016, Shannon, Thomas, McCarter, and Wills met in a vacant

      rental house in Anderson, Indiana. Shannon brought the marijuana, scales,

      and plastic bags along. Thereafter, as Shannon began weighing the marijuana

      in the kitchen, McCarter grabbed the bag of marijuana from him. Several

      events then occurred simultaneously. Shannon immediately attacked McCarter

      and punched him several times in his face. Their fight ultimately left McCarter

      with a dislocated shoulder and he retreated to an adjacent room. While

      Shannon and McCarter were fighting, Wills pulled out a handgun and fired one

      bullet into the kitchen wall. Wills pointed the gun “up in the air” for this shot.

      Tr., Vol. I at 191. This caused Thomas to escape out the door and run to her

      car. Shannon then “wrestled” with Wills for a moment before turning to run

      out the door. Id. at 192. Wills yelled at Shannon to “give me your sh*t.” Id. at




      Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 3 of 19
      191. As he turned to run out the door, Wills “pistol whipped”1 Shannon in the

      back of his head. Id. at 193. Immediately after being struck in the back of the

      head, Shannon heard another gunshot directly “next to [his] ear.” Id. at 194.

      Shannon then, while standing on the porch outside the home, turned to face

      Wills. Wills pointed his handgun at Shannon’s face and again said, “give me

      your sh*t . . . .” Id. Shannon responded Wills would have to “shot [sic] me in

      my face for it.” Id. Wills then pointed his gun at Thomas’ car and fired a shot,

      which struck Thomas in her collarbone. Shannon immediately jumped in the

      car and drove Thomas to a hospital.


[5]   The next morning, McCarter fled to Georgia and stayed with his mother.

      McCarter remained in Georgia for a week before returning to Indiana to turn

      himself in. Through McCarter’s jail phone calls, law enforcement learned of

      Wills and his involvement. Wills was arrested on March 29, 2016.


[6]   The State charged Wills with two counts of attempted murder, Level 1 felonies;

      attempted robbery resulting in serious bodily injury, a Level 2 felony; battery by

      means of a deadly weapon, a Level 5 felony; and carrying a handgun without a

      license, a Class A misdemeanor. The State also alleged Wills to be a serious

      violent felon in possession of a firearm. A jury found Wills guilty as charged.

      Following the jury’s verdict, Wills pleaded guilty to unlawful possession of a

      firearm by a serious violent felon. The trial court sentenced Wills to thirty-five



      1
        By “pistol whipped[,]” Shannon meant Wills “took the butt of the gun and hit [him] in the back of the head
      . . . .” Id. at 193.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018            Page 4 of 19
      years for each count of attempted murder; twenty years for attempted robbery;

      four years for battery by means of a deadly weapon; and eight years for

      unlawful possession of a firearm by a serious violent felon. The trial court

      ordered Wills’ two sentences for attempted murder and his sentence for

      unlawful possession of a firearm to run consecutively while the other sentences

      were concurrent for an aggregate sentence of seventy-eight years. Wills now

      appeals.



                                Discussion and Decision
                                  I. Admission of Evidence
[7]   Wills first argues the trial court abused its discretion in admitting evidence of

      text messages and phone calls from a cell phone obtained by police. We review

      a trial court’s ruling on the admissibility of evidence for an abuse of discretion.

      Erickson v. State, 72 N.E.3d 965, 969 (Ind. Ct. App. 2017), trans. denied. A trial

      court abuses its discretion when its decision is clearly against the logic and

      effect of the facts and circumstances before the court. Id.


[8]   At trial, the State introduced into evidence text messages and a call log from a

      phone taken from Wills. The text messages and call log purported to show

      Wills and McCarter setting up the arrangement to rob Shannon. First, we note

      Wills did not object at trial to the admission of the text messages taken from the

      phone. See Tr., Vol. III at 76. Thus, Wills has waived any error on appeal with

      respect to this evidence. Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012).

      Moreover, any error in the admission of this evidence is harmless. Errors in the
      Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 5 of 19
       admission of evidence are to be disregarded as harmless unless they affect the

       substantial rights of a party. Sparkman v. State, 722 N.E.2d 1259, 1263 (Ind. Ct.

       App. 2000). In determining whether error in the introduction of evidence

       affected a defendant’s substantial rights, we must assess the probable impact of

       the improperly admitted evidence upon the jury. Id.


[9]    Here, McCarter, Thomas, and Shannon all positively identified Wills as the

       shooter. In light of this strong evidence, it is unlikely any error in the admission

       of these cell phone records had any impact upon the jury.


                               II. Sufficiency of the Evidence
[10]   Wills also challenges whether the State presented sufficient evidence to support

       his convictions for attempted murder and battery by means of a deadly weapon.

       In reviewing challenges to the sufficiency of the evidence, we do not reweigh

       the evidence or judge witness credibility. Leonard v. State, 80 N.E.3d 878, 882

       (Ind. 2017). We consider only the evidence and reasonable inferences

       supporting the verdict and will affirm a conviction if there is probative evidence

       from which a reasonable trier of fact could have found the defendant guilty

       beyond a reasonable doubt. Id. Evidence is sufficient if an inference may

       reasonably be drawn from it to support the verdict. Sallee v. State, 51 N.E.3d

       130, 133 (Ind. 2016).


                                       A. Attempted Murders
[11]   A person commits murder by “knowingly or intentionally kill[ing] another

       human being.” Ind. Code § 35-42-1-1(1). An “attempt” to commit a crime

       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 6 of 19
       occurs when a person, “acting with the culpability required for commission of

       the crime, . . . engages in conduct that constitutes a substantial step toward

       commission of the crime.” Ind. Code § 35-41-5-1(a). Therefore, to obtain a

       conviction for attempted murder, the State was required to prove beyond a

       reasonable doubt that Wills engaged in conduct that constituted a substantial

       step toward killing Shannon and Thomas.


[12]   The State must also demonstrate Wills acted with “specific intent to kill another

       person.” Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998). The jury may infer

       an “intent to kill” from the nature of the attack, the circumstances surrounding

       the crime, and the use of a deadly weapon in a manner likely to cause death or

       great bodily harm. Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002). Discharging

       a weapon in the direction of a victim is substantial evidence from which a jury

       could infer a specific intent to kill. Corbin v. State, 840 N.E.2d 424, 429 (Ind. Ct.

       App. 2006).


[13]   Wills argues the State failed to present sufficient evidence that he possessed a

       specific intent to kill Shannon. Specifically, Willis argues because Shannon had

       his back turned towards him during the second shot and could not see where he

       pointed the firearm, the State failed to present sufficient evidence of his intent to

       kill Shannon.


[14]   Under the circumstances presented by this case, the State presented sufficient

       evidence for a jury to conclude beyond a reasonable doubt Wills intended to kill

       Shannon. The evidence most favorable to the verdict demonstrates that Wills


       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 7 of 19
       intended to rob Shannon and Thomas during a drug deal and had McCarter set

       up the arrangement to do so. As the deal progressed, Wills pulled out a firearm

       and fired a total of three shots. Wills fired the first shot into the kitchen wall.

       Wills then “wrestled” with Shannon and “pistol whipped” him in the back of

       the head before firing a shot “next to [Shannon’s] ear” as he ran out the

       backdoor of the home. Tr., Vol. I at 193-94. The shot missed Shannon and

       struck the hood of Thomas’ car. Wills’ underlying plan to rob Shannon and

       Thomas, struggling with Shannon and striking him in the back of the head, and

       firing a weapon in Shannon’s direction as he attempted to escape is sufficient

       evidence for a jury to conclude Wills intended to kill Shannon. See Davis v.

       State, 558 N.E.2d 811, 812 (Ind. 1990) (firing a weapon at a police officer and

       striking the car behind him is sufficient evidence to support an attempted

       murder conviction); Brumbaugh v. State, 491 N.E.2d 983, 984 (Ind. 1986) (firing

       a shotgun at a police helicopter where the bullet “whizzed” by the officer’s head

       is sufficient evidence to affirm a conviction for attempted murder).2


[15]   As to Thomas, Wills argues there is insufficient evidence he knew she was in

       the car when he fired his gun and therefore insufficient evidence of his specific

       intent to kill her. He bases this argument on the testimony of Detective Doug

       Stanton, who testified that, based on the angle of the shot that struck Thomas, it




       2
        Wills’ argument that he lacked an intent to kill because he had multiple opportunities to kill Shannon and
       declined to do so is simply a request to reweigh the evidence, which we cannot do. Leonard, 80 N.E.3d at
       882.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018             Page 8 of 19
was possible that she was ducking down in the front seat of the car. However,

Wills’ argument is undercut by Shannon’s and Thomas’ testimony.


        [State]:         [H]e is pointing what at your face?

        [Shannon]: The gun.

        [State]:         Okay. He pointed the gun at your face and what
                         happened next?

        [Shannon]: He pointed it at the car and let off a round.

        [State]:         At that point could you see [Thomas] in the car?

        [Shannon]: Yes.

        [State]:         And you saw [Wills] point the gun at your face and
                         then at the car?

        [Shannon]: Yes.


Tr., Vol. I at 195.


        [State]:         Did you ever see [Wills] point the gun at you?

        [Thomas]:        Yes in my car and in the living room.

        [State]:         Okay and when he pointed the gun at you when
                         you were in the car. Could you see him?

        [Thomas]:        Yeah he was on the porch.


Tr., Vol. II at 3. Thus, there is sufficient evidence in the record to permit a jury

to conclude Wills saw Thomas in the car, pointed the gun at her, and pulled the

trigger. Wills’ argument to the contrary is a request to reweigh evidence, which

we cannot do. Leonard, 80 N.E.3d at 882.

Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 9 of 19
                        B. Battery by Means of a Deadly Weapon
[16]   Wills also briefly alleges there is insufficient evidence to convict him of battery

       by means of a deadly weapon. Specifically, he argues “[n]o medical evidence

       was presented by the State that Shannon was hit by the butt of a gun or any

       other hard object.” Appellant’s Brief at 13.


[17]   To convict Wills of battery by means of a deadly weapon, the State was

       required to prove Wills knowingly or intentionally touched Shannon in a rude,

       insolent, or angry manner. Ind. Code § 35-42-2-1(c). The offense is a Level 5

       felony if it is committed with a deadly weapon. Ind. Code § 35-42-2-1(g)(2). A

       “deadly weapon” is defined as a “loaded or unloaded firearm” or a “destructive

       device, weapon, . . . equipment, . . . or other material that in the manner it is

       used, could ordinarily be used, or is intended to be used, is readily capable of

       causing serious bodily injury.” Ind. Code § 35-31.5-2-86(a).


[18]   The evidence is undisputed Wills possessed a firearm during these events.

       Moreover, Shannon testified Wills used the “butt of the gun [to] hit [Shannon]

       in the back of the head . . . .” Tr., Vol. I at 193. This caused Shannon to bleed

       near the crown of his head. The statute does not require the State to present

       “medical evidence” and the testimony of a single victim is sufficient to support

       Wills’ conviction for battery by means of a deadly weapon. Brasher v. State, 746

       N.E.2d 71, 72 (Ind. 2001).




       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 10 of 19
                                       III. Double Jeopardy
[19]   Next, Wills alleges his convictions for attempted robbery resulting in serious

       bodily injury and attempted murder violate Indiana’s constitutional prohibition

       against double jeopardy. We review alleged double jeopardy violations de

       novo. Ellis v. State, 29 N.E.3d 792, 797 (Ind. Ct. App. 2015), trans. denied.


[20]   Article 1, section 14 of the Indiana Constitution provides that “[n]o person shall

       be put in jeopardy twice for the same offense.” Two offenses are the “same

       offense” in violation of Indiana’s double jeopardy clause if, with respect to

       either the statutory elements of the challenged crimes or the actual evidence

       used to convict, the essential elements of one challenged offense also establish

       the essential elements of another challenged offense. Spivey v. State, 761 N.E.2d

       831, 832 (Ind. 2002). To demonstrate two challenged offenses are the same

       under the actual evidence test, a defendant must demonstrate a reasonable

       possibility the evidentiary facts used by the fact-finder to establish the essential

       elements of one offense may also have been used to establish the essential

       elements of a second challenged offense. Richardson v. State, 717 N.E.2d 32, 53

       (Ind. 1999). We conduct our analysis by examining the evidence presented at

       trial to determine whether each challenged offense was established by separate

       and distinct facts. Id. There is no double jeopardy violation when the

       evidentiary facts establishing the essential elements of one offense establish only

       one or even several, but not all, of the elements of a second offense. Spivey, 761

       N.E.2d at 833.



       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 11 of 19
[21]   Wills contends the record reflects a reasonable possibility “the jury used the

       same evidence to support” his convictions of attempted murder and attempted

       robbery resulting in serious bodily injury. Appellant’s Br. at 19. Specifically,

       Wills alleges a reasonable possibility the jury used Thomas’ injury as the basis

       for both the serious bodily injury enhancement3 for attempted robbery and the

       substantial step in the commission of the attempted murder. However, this

       argument, even if sustained, does not violate the Richardson actual evidence test

       because, as noted, under that test, “the Indiana Double Jeopardy Clause is not

       violated when the evidentiary facts establishing the essential elements of one

       offense also establish only one or even several, but not all, of the essential

       elements of a second offense.” Spivey, 761 N.E.2d at 833. The test is “not

       merely whether the evidentiary facts used to establish one of the essential

       elements of one offense may also have been used to establish one of the essential

       elements of a second challenged offense.” Id.


[22]   Wills does not argue that the facts establishing all the elements of attempted

       murder establish all the elements of attempted robbery resulting in serious

       bodily injury. Therefore, Wills has failed to establish a violation of the

       Richardson actual evidence test.




       3
         Indiana Code section 35-42-5-1(a) provides that “a person who knowingly or intentionally takes property
       from another person or from the presence of another person by using or threatening the use of force on any
       person or by putting any person in fear commits robbery, a Level 5 felony. However, the offense is a . . .
       Level 2 felony if it results in serious bodily injury to any person other than a defendant.”

       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018           Page 12 of 19
[23]   However, as our courts have often noted, Indiana’s double jeopardy

       jurisprudence still adheres to a series of rules of statutory construction and

       common law that are separate and in addition to the protections afforded by

       our constitution. These rules are often referred to as “Justice Sullivan’s

       categories” because he first enumerated them in his concurring opinion in

       Richardson. Zieman v. State, 990 N.E.2d 53, 61 (Ind. Ct. App. 2013). One of

       these categories prohibits “conviction and punishment for an enhancement of a

       crime where the enhancement is imposed for the very same behavior or harm as

       another crime for which the defendant has been convicted and punished.”

       Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002). Justice Sullivan explained

       that “[i]n situations where a defendant has been convicted of one crime for

       engaging in the specified additional behavior or causing the specified additional

       harm, that behavior or harm cannot also be used as an enhancement of a

       separate crime; either the enhancement or the separate crime is vacated.”

       Richardson, 717 N.E.2d at 56 (Sullivan, J. concurring). Therefore, we phrase

       the issue as whether there is a reasonable possibility that the jury used the same

       facts to establish both the substantial step element of Wills’ attempted murder of

       Thomas and the serious bodily injury element of his Level 2 attempted robbery

       resulting in serious bodily injury. To determine which facts the jury used to

       establish each element of an offense we consider “the evidence, charging

       information, final jury instructions and arguments of counsel.” Boss v. State,

       964 N.E.2d 931, 937 (Ind. Ct. App. 2012).


[24]   The State’s charging information stated as follows:


       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 13 of 19
        On or about March 6, 2016, in Madison County, State of
        Indiana, William Martez Wills did intentionally engage in
        conduct that constitutes a substantial step toward killing another
        human being, to wit: M.T.

        ***

        On or about March 6, 2016, in Madison County, State of
        Indiana, William Martez Wills did knowingly or intentionally
        engage in conduct that constitutes a substantial step toward
        taking property from another person or from the presence of
        another person, to wit: M.T. or Daniel Shannon, by using or
        threatening the use of force or by putting any person in fear.
        Further, the act resulted in serious bodily injury to M.T.


Appellant’s Appendix, Volume II at 62-63. Moreover, at closing arguments,

the State argued the same act and injury in support of both charges. The

prosecutor argued,


        On March 6th of 2016, [Wills] pointed and fired a gun at Madison
        Thomas. We have the bullet hole in the car windshield and the
        bullet hole in her chest. He pointed the gun at Daniel and then
        he moved the gun and pointed it at [Thomas]. . . . [Wills] did
        knowingly or intentionally engage in conduct that constitutes a
        substantial step toward taking property from another person
        . . . by using or threaten[ing] the use of force . . . . [Wills] tried to
        take the marijuana. [Thomas] had the serious bodily injury.


Tr., Vol. III at 100-01, 102-03. Based on the charging information, evidence

presented at trial, and the prosecutor’s argument to the jury, we conclude that

there is a reasonable possibility the jury used the evidence of Thomas’ injury as

the substantial step element of attempted murder and the resulting serious




Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 14 of 19
       bodily injury element of attempted robbery, resulting in a violation of double

       jeopardy principles.4


[25]   As to the proper relief in this case, we observe,


                When two convictions are found to contravene double jeopardy
                principles, a reviewing court may remedy the violation by
                reducing either conviction to a less serious form of the same
                offense if doing so will eliminate the violation. In the alternative,
                a reviewing court may vacate one of the convictions to eliminate
                a double jeopardy violation. In making that determination, we
                must be mindful of the penal consequences that the trial court
                found appropriate.


       McCann v. State, 854 N.E.2d 905, 915 (Ind. Ct. App. 2006). The double

       jeopardy violation that exists here is remedied by removing the serious bodily

       injury enhancement of Wills’ conviction of attempted robbery and reducing that

       conviction to a Level 3 felony. See Ind. Code 35-42-5-1(a) (robbery committed

       while armed with a deadly weapon is enhanced to a Level 3 felony). Thus, we

       remand with instructions to the trial court to reduce Wills’ attempted robbery

       conviction to a Level 3 felony and to re-sentence him accordingly.




       4
         The State argues there is no double jeopardy violation because “Wills was guilty of attempted murder
       regardless of whether the bullet hit Thomas. . . . Therefore, Wills was not being punished for the ‘very same
       behavior or harm.’” Brief of Appellee at 26. However, while that may be, the bullet did strike Thomas and
       Wills was subsequently tried and convicted for that act and harm. See Moore v. State, 652 N.E.2d 53, 60 (Ind.
       1995) (reducing an enhancement to a robbery conviction because the very same killing that was the basis of
       the enhancement was also the basis of a murder conviction).

       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018            Page 15 of 19
                               IV. Prosecutorial Misconduct
[26]   Finally, Wills alleges the State committed prosecutorial misconduct in closing

       arguments. Specifically, Wills contends the prosecution misstated evidence,

       commented on evidence not supported by the record, and misstated Indiana

       case law to the jury.


[27]   A claim of prosecutorial misconduct requires us to make the following

       determinations: first, we determine whether the prosecutor’s conduct qualifies

       as misconduct, and second, whether any misconduct “placed the defendant in a

       position of gravel peril” to which he otherwise would not have been subjected.

       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). A prosecutor has a duty to present

       persuasive final argument and it is proper for a prosecutor to propound

       conclusions based on his or her analysis of the evidence. Id. To determine if

       misconduct occurred, reviewing courts look to case law and the Indiana Rules

       of Professional Conduct. Id.


[28]   A defendant alleging a claim of prosecutorial misconduct must object at trial to

       preserve any claim of error. Id. A defendant’s failure to object at trial will

       waive any error unless the prosecutor’s conduct constitutes fundamental error.

       Id. at 667-68. Fundamental error is an extremely narrow exception to the

       waiver rule where the defendant faces the heavy burden of showing that the

       alleged errors are so prejudicial to the defendant’s rights as to “make a fair trial

       impossible.” Id. at 668 (citation omitted).




       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 16 of 19
[29]   Wills failed to object to the prosecutor’s closing argument at trial and has

       waived this argument unless fundamental error occurred. Waiver

       notwithstanding, we conclude no prosecutorial misconduct occurred in this

       case.


[30]   Wills’ first allegation of misconduct states “both prosecutors argued that Wills

       fired the gun at Daniel Shannon as he was ‘walking’ or ‘running’ out to the

       car.” Appellant’s Br. at 16. Wills contends this was in error because there was

       no evidence to support these comments. Shannon testified “I guess we wrestled

       for a second and then umm, I released and tried running out myself.” Tr., Vol.

       I at 192. Later in his testimony Shannon again stated that after he “wrestled”

       with Wills, “[he] turned around to run out of the house.” Tr., Vol. I at 192.

       The prosecution’s comments that Shannon walked or ran out of the house is a

       proper characterization of the evidence.


[31]   Wills also alleges the prosecution misstated evidence when it informed the jury

       “Wills could see Madison Thomas in the car.” Appellant’s Br. at 16. Shannon

       testified Madison was visible in her car from the back porch of the home and

       Thomas testified she could see Wills on the back porch from her location in the

       car. Moreover, Detective Doug Stanton testified there a “line of sight” from the

       back porch to the car because the back porch was elevated. Tr., Vol. II at 130.

       The prosecution’s characterization of this evidence was not improper.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 17 of 19
[32]   Finally, Wills contends the prosecutor gave the jury an incomplete statement of

       law regarding attempted murder. During closing argument, the prosecutor

       stated,


                 The law in Indiana from Perez v. State. Intent to kill may be
                 inferred from the use of a deadly weapon in a manner likely to
                 cause death or cause pre-bodily harm. It also says discharging a
                 weapon in a direction of a victim is a substantial evidence from
                 which the jury could infer intent to kill.


       Tr., Vol. III at 109. The prosecution later argued that “[s]pecific intent is at the

       moment in this case when the gun was fired. At that moment is when the

       attempted murder was committed.” Id. at 130. Wills alleges this comment

       impacted the jury’s ability to judge the evidence by leading the jury to believe

       simply pulling the trigger of a gun is enough to convict Wills of attempted

       murder.


[33]   The prosecution’s statement is an accurate statement of law and does not

       constitute misconduct. In this case, the attempt to commit murder did occur

       when Wills pulled the trigger. The jury’s duty was to determine, at the time

       Wills pulled the trigger, whether he had specific intent to kill Thomas and

       Shannon. Wills takes issue with one sentence of a prolonged closing statement

       in which the prosecution detailed at length the nature and circumstances under

       which the crimes occurred. Further, the final jury instructions informed the

       jury of the definition of “intent” under Indiana law and its role in adjudicating

       the facts of the case. The trial court instructed the jury, “[a] person engages in

       conduct ‘intentionally’ if, when the person engages in the conduct, it is the

       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 18 of 19
       person’s conscious objective to so engage in such conduct.” Tr., Vol. III at 140.

       The jury was also informed that “[y]ou are the exclusive judges of the evidence,

       which may be either witness testimony or exhibits. . . . [I]t is your duty to

       decide the value you give to the exhibits you receive and the testimony you

       hear.” Id. at 141. We conclude Wills failed to establish any misconduct in this

       case.



                                               Conclusion
[34]   We conclude any error in the admission of evidence is harmless, there is

       sufficient evidence to support Wills’ convictions of attempted murder and

       battery by means of a deadly weapon, and the prosecution did not commit

       prosecutorial misconduct. However, we also conclude Wills’ convictions for

       attempted murder and attempted robbery resulting in serious bodily injury

       violate principles of double jeopardy. Consequently, we affirm in part and

       reverse and remand in part with instructions to the trial court to reduce Wills’

       attempted robbery conviction to a Level 3 felony and to re-sentence him

       accordingly.


[35]   Affirmed in part, reversed in part, and remanded.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-933 | March 23, 2018   Page 19 of 19
