MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 Jul 08 2020, 8:40 am

court except for the purpose of establishing                                   CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Marielena Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Ellen H. Meilaender
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Xavier Wesley Day,                                        July 8, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2997
        v.                                                Appeal from the
                                                          St. Joseph Superior Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff.                                       Jeffrey L. Sanford, Judge
                                                          Trial Court Cause No.
                                                          71D03-1809-F1-20



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020                      Page 1 of 11
[1]   Xavier Wesley Day (“Day”) was convicted after a jury trial of attempted

      murder,1 a Level 1 felony, and sentenced to forty years in the Department of

      Correction. Day appeals his conviction and raises the following issue for our

      review: whether the trial court committed fundamental error when it gave a

      final jury instruction for attempted murder requiring the jury to find that Day

      acted with the “conscious purpose” of killing and took a substantial step toward

      the “intended” crime of murder.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In September 2018, Faith Salinas (“Salinas”), who was then seventeen years

      old, made a post on Facebook asking if anyone could show her how to make

      marijuana edibles. Tr. Vol. 2 at 66. Alondra Trevino (“Trevino”), who was a

      friend of Salinas, responded, and they arranged to meet on September 24, 2018,

      to make the edibles together. Id. at 65, 67. Trevino was dating Day at the time,

      and although she had told Salinas that she would help her, she and Day had

      actually made a plan to rob Salinas of her marijuana instead. Id. at 65-66; Tr.

      Vol. 3 at 29-30, 68-71. Trevino and Day knew that Salinas had a gun, and they

      were both concerned that she might be armed. Tr. Vol. 3 at 76-77.




      1
          See Ind. Code §§ 35-42-1-1(1), 35-41-5-1(a).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020   Page 2 of 11
[4]   On September 24, 2018, Trevino picked up Salinas at her house, and then

      stopped at the Citgo gas station near Salinas’s house, telling Salinas she needed

      to get gas and other items. Tr. Vol. 2 at 69-70; Tr. Vol. 3 at 69. Day, Alvin

      Sanders (“Sanders”), and Que’lin Jones (“Jones”) parked a couple of blocks

      south of the gas station and then walked to the gas station. Tr. Vol. 3 at 19-20,

      45-46. On the way to the gas station, Day and Sanders talked about their plan

      to get a “twenty sack,” meaning $20 worth of marijuana, without paying for it.

      Id. at 22-23, 29-30. At approximately 9:44 p.m., Day, Sanders, and Jones

      arrived at the gas station. Id. at 45-46. When Trevino exited her car and went

      into the gas station, leaving Salinas sitting in the car, Sanders entered the back

      seat of the car and began talking to Salinas. Tr. Vol. 2 at 70-71. Sanders asked

      Salinas if she had any marijuana and if she had a “pole,” meaning a gun, and

      Salinas began to feel uncomfortable based on his questions and the fact that she

      felt he was acting strangely. Id. at 71-72, 83-84. Salinas then saw Day standing

      outside the passenger door, pointing a gun at her face, and he demanded, “give

      me all your shit.” Id. at 72-73.


[5]   Salinas told Day that he would have to kill her to get her stuff and got out of the

      car carrying her backpack, which had her marijuana inside. Id. at 73; Tr. Vol. 3

      at 7, 55. Day tried to grab the backpack away from Salinas, but she would not

      let go of it. Tr. Vol. 2 at 73; Tr. Vol. 3 at 79. Day shot Salinas, and she fell to the

      ground. Tr. Vol. 2 at 74; State’s Exs. 6, 6A. Day then took a couple of steps

      toward Salinas and shot her several more times. Tr. Vol. 2 at 74-75; Tr. Vol. 3 at

      28, 71; State’s Exs. 6, 6A. While Day was shooting her, Salinas was able to pull

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020   Page 3 of 11
      her gun out of her jacket pocket and fire it at Day. Tr. Vol. 2 at 74-75, 87; State’s

      Exs. 6, 6A. Day and Sanders fled the scene on foot, and Trevino got into her

      car and drove away, leaving Salinas lying on the ground suffering from several

      gunshot wounds. Tr. Vol. 3 at 45-46, 71.


[6]   Police were dispatched to the area around 9:46 p.m. on a report of nine shots

      fired. Tr. Vol. 2 at 19-20, 31-32. When the police arrived, they found Salinas

      lying on the ground barely breathing, unable to speak, and suffering from

      multiple gunshot wounds. Id. at 20-21, 32. The police recovered six spent nine-

      millimeter casings and one spent .32 caliber casing at the scene. Id. at 55. The

      .32 caliber casing had been fired by Salinas’s gun, which was subsequently

      recovered from a trash can at the gas station, and the nine-millimeter casings

      were all fired by the same gun, which was not Salinas’s gun. Id. at 54-55, 75;

      Tr. Vol. 3 at 47-48. The police were able to obtain surveillance video from the

      gas station that had captured the shooting. Police also recovered Salinas’s

      backpack, which had two bullet holes in it. Tr. Vol. 2 at 54, 61-62; Tr. Vol. 3 at

      51-52; State’s Exs. 6, 6A. The police also obtained GPS data from a device

      carried by Day that showed him approaching the gas station between 9:33 p.m.

      and 9:38 p.m., at the gas station from 9:44 p.m. to 9:46 p.m., and half a block

      south of the gas station at 9:47 p.m. Tr. Vol. 3 at 45-46; State’s Exs. 57-64.


[7]   Salinas was taken to the hospital, suffering from multiple gunshot wounds to

      her chest, back, side, and arm, which required emergency surgery. Tr. Vol. 2 at

      75, 76; Tr. Vol. 3 at 9, 35. At the hospital, she was able to tell the officers that

      Day was the person who had shot her. Tr. Vol. 2 at 77-78; Tr. Vol. 3 at 10, 35-
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020   Page 4 of 11
      36. At the hospital, it was determined that Salinas had been shot in the lung,

      liver, and spleen, suffered from a collapsed lung, and had to have her spleen

      removed. Tr. Vol. 2 at 76-77. She also suffered injury to the vertebrae in her

      back that left her paralyzed from the waist down and confined to a wheelchair.

      Id. at 67, 76-77.


[8]   The State charged Day with Level 1 felony attempted murder and Level 2

      felony attempted robbery resulting in serious bodily injury. Appellant’s Conf.

      App. Vol. 2 at 4, 74. A jury trial was held on October 21 and 22, 2019. Id. at

      162. At the conclusion of the trial, the trial court instructed the jury as to the

      elements of the charged crimes, and the instruction for the attempted murder

      charge read:


              To convict the defendant of Count I, Attempted Murder, a Level
              1 felony, the State must have proven each of the following
              elements beyond a reasonable doubt:


              1. The defendant, Xavier Wesley Day,


              2. acting with the conscious purpose of killing Faith Salinas,


              3. did touch Faith Salinas with a deadly weapon, to-wit: shot
              Faith Salinas,


              4. which was conduct constituting a substantial step toward the
              commission of the intended crime of killing Faith Salinas.


      Id. at 98. Day did not object to the instruction and told the trial court that its

      instructions were “fine.” Tr. Vol. 3 at 59.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020   Page 5 of 11
[9]    The State, in its closing argument regarding the attempted murder charge, told

       the jury that “conscious objective” means doing something intentionally and on

       purpose. Id. at 92. The State asked the jury, “how do we know it was on

       purpose?” and highlighted the evidence that immediately after Salinas told Day

       “you’re going to have to kill me to take my stuff,” he shot her several times at

       point blank range. Id. The State later reiterated that the evidence that Day

       shot Salinas six times in the chest and back and then left her to die

       demonstrated that Day wanted to kill Salinas. Id. at 93-94.


[10]   In his closing argument, Day’s counsel argued that the State had failed to prove

       both his identity as the shooter and his intent to kill. Id. at 96-98. As to intent,

       counsel advised the jury that the State needed to prove “specific intent” and

       that what the jury saw in the video “is a reaction. It’s not a plan. It’s not a

       conscious objective. It is simply reacting to the situation that the shooter found

       himself in.” Id. at 98-99. Day’s counsel argued that there was no “conscious

       objective” to kill Salinas, that Day’s “objective” was to “snatch some weed”

       and get away safely, and that this “objective” continued through the incident.

       Id. at 99-100.


[11]   In its rebuttal argument, the State argued that it “defie[d] logic” that someone

       could point a gun at another and fire it at the person’s chest and back at close

       range and not “intend to kill them.” Id. at 102. The State alleged that Day

       “intended to kill her” and concluded its argument by emphasizing that, “when

       [Day] took those two steps toward [Salinas] and started firing at her, raising the



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020   Page 6 of 11
       gun and pointing it at her and shooting at her point blank and then leaving her

       to die, absolutely that’s conscious intent.” Id. at 102-03.


[12]   The jury found Day guilty as charged. Id. at 116. The trial court entered

       judgment only as to the Level 1 felony attempted murder conviction due to

       double jeopardy concerns and sentenced Day to forty years in the Department

       of Correction. Id. at 127-28; Appellant’s Conf. App. Vol. 2 at 140. Day now

       appeals.


                                      Discussion and Decision
[13]   Day argues that the trial court erred in instructing the jury. The manner of

       instructing a jury is left to the sound discretion of the trial court. White v. State,

       25 N.E.3d 107, 126 (Ind. Ct. App. 2014) (citing Albores v. State, 987 N.E.2d 98,

       99 (Ind. Ct. App. 2013), trans. denied), trans. denied, cert. denied, 136 S. Ct. 595

       (2015). “When reviewing a trial court’s decision to refuse or give jury

       instructions, this Court ‘considers: (1) whether the instruction correctly states

       the law; (2) whether there is evidence in the record to support the giving of the

       instruction; and (3) whether the substance of the tendered instruction is covered

       by other instructions which are given.’” Id. (quoting Watson v. State, 972

       N.E.2d 378, 383 (Ind. Ct. App. 2012)). Day challenges the attempted murder

       instruction given to the jury, which provided:


               To convict the defendant of Count I, Attempted Murder, a Level
               1 felony, the State must have proven each of the following
               elements beyond a reasonable doubt:



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020   Page 7 of 11
               1. The defendant, Xavier Wesley Day,


               2. acting with the conscious purpose of killing Faith Salinas,


               3. did touch Faith Salinas with a deadly weapon, to-wit: shot
               Faith Salinas,


               4. which was conduct constituting a substantial step toward the
               commission of the intended crime of killing Faith Salinas.


       Appellant’s Conf. App. Vol. 2 at 98.


[14]   Day did not object to this instruction at trial. Generally, where a defendant

       fails to object to a jury instruction or fails to tender alternate instructions, the

       defendant’s claim of error on appeal is waived. Barthalow v. State, 119 N.E.3d

       204, 211 (Ind. Ct. App. 2019). However, we will consider a defendant’s

       argument that the error constituted fundamental error. Staley v. State, 895

       N.E.2d 1245, 1248 (Ind. Ct. App. 2008), trans. denied. “This exception to the

       general rule requiring a contemporaneous objection is narrow, providing relief

       only in ‘egregious circumstances’ that made a fair trial impossible.” Pattison v.

       State, 54 N.E.3d 361, 365 (Ind. 2016). “An error may be fundamental and thus

       not subject to waiver, if it is a ‘substantial blatant violation of basic principles.’”

       Barthalow, 119 N.E.3d at 211 (quoting Moreland v. State, 701 N.E.2d 288, 294

       (Ind. Ct. App. 1998) (internal quotation omitted)). The error must be so

       prejudicial to the rights of the defendant as to make a fair trial impossible. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020   Page 8 of 11
[15]   Day argues that the trial court committed fundamental error in instructing the

       jury as to the charge of attempted murder. He contends that the instruction

       given containing the elements of the crime was erroneous because it did not

       inform the jury that the State must prove beyond a reasonable doubt that “the

       defendant, with the specific intent to kill the victim engaged in conduct

       constituting a substantial step toward such killing.” Appellant’s Br. at 8 (citing

       Rosales v. State, 23 N.E.3d 8 (Ind. 2015)). Day asserts that, instead of using the

       language “specific intent to kill,” the trial court’s instruction used “conscious

       purpose,” which constituted fundamental error. He maintains that, because the

       Indiana Pattern Jury Instruction for attempted murder uses the language

       “specific intent to kill,” it was fundamental error to not use such language.


[16]   In Spradlin v. State, 569 N.E.2d 948 (Ind. 1991), the Indiana Supreme Court

       determined that an attempted murder instruction “which purports to set forth

       the elements which must be proven in order to convict of the crime of

       attempted murder must inform the jury that the State must prove beyond a

       reasonable doubt that the defendant, with the intent to kill the victim, engaged

       in conduct which was a substantial step toward such killing.” Id. at 950. A jury

       should not be instructed that a “knowing” mens rea is sufficient to establish

       guilt of attempted murder. Clay v. State, 766 N.E.2d 33, 36 (Ind. Ct. App.

       2002). Error in an attempted murder instruction does not rise to the level of

       fundamental error where either 1) the instructions as a whole sufficiently inform

       the jury of the requirement of intent to kill; and/or 2) the intent of the

       perpetrator was not a central issue at trial. Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020   Page 9 of 11
[17]   Here, the instruction at issue did not contain the term “knowingly” at all and

       instructed the jury that it had to find Day acted “with the conscious purpose of

       killing” Salinas and that he engaged in a substantial step toward his “intended

       crime of killing” Salinas. Appellant’s Conf. App. 2 at 98. In Clay, this court held

       that the meaning of the phrase “conscious purpose” is equivalent to the mens

       rea of “specific intent” and that there is no functional difference between an

       instruction that uses the language “conscious purpose” to kill and one that uses

       the language “specific intent” to kill because the terms have the same meaning.

       766 N.E.2d at 37; see also Elliott v. State, 786 N.E.2d 799, 802 (Ind. Ct. App.

       2003) (same). Therefore, the use of the phrase “conscious purpose” in an

       attempted murder instruction does not constitute fundamental error because it

       has the same meaning as “specific intent” and informs the jury that the State

       must prove that the defendant intended to kill the victim. See Elliott, 786

       N.E.2d at 802; Clay, 766 N.E.2d at 37.


[18]   The jury instruction challenged by Day in the present case is virtually identical

       to the language found to be proper in both Clay and Elliott. The attempted

       murder instruction given by the trial court informed the jury that the State had

       to prove that Day acted “with the conscious purpose of killing” Salinas and that he

       shot her, which was conduct that constituted “a substantial step toward the

       commission of the intended crime of killing” Salinas. Appellant’s Conf. App. Vol. 2

       at 98 (emphasis added). This jury instruction, as a whole, adequately informed

       the jury that the State was required to prove that Day had the specific intent to




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020   Page 10 of 11
       kill Salinas. The trial court did not commit fundamental error when it gave the

       jury instruction at issue.


[19]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020   Page 11 of 11
