MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                      FILED
court except for the purpose of establishing                      Aug 24 2017, 6:16 am

the defense of res judicata, collateral                               CLERK
                                                                  Indiana Supreme Court
estoppel, or the law of the case.                                    Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce W. Graham                                          Curtis T. Hill, Jr.
Graham Law Firm P.C.                                     Attorney General of Indiana
Lafayette, Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Hirman E. Jackson,                                       August 24, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A04-1612-CR-2936
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas H. Busch,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79C01-1603-F1-4



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017   Page 1 of 13
                                            Statement of the Case
[1]   Hirman Jackson appeals his convictions1 for five counts of attempted murder,

      as Level 1 felonies (Counts I-V); two counts of aggravated battery, as Level 3

      felonies (Counts VI and VII); two counts of battery with a deadly weapon, as

      Level 5 felonies (Counts VIII and IX); two counts of battery resulting in serious

      bodily injury, as Level 5 felonies (Counts X and XI); one count of criminal

      recklessness, as a Level 5 felony (Count XII); one count of pointing a firearm,

      as a Level 6 felony (Count XIII); one count of unlawful possession of a firearm

      by a serious violent felon, as a Level 4 felony (Count XIV); a sentencing

      enhancement based on the unlawful use of a firearm in the commission of a

      felony (Count XV); and a habitual offender sentencing enhancement (Count

      XVI). He raises two issues for our review, which we restate as follows:


               1. Whether the court committed fundamental error when it
                  instructed the jury on transferred intent.


               2. Whether the court committed fundamental error when it
                  permitted the State to inform the jury as to how the evidence
                  demonstrated Jackson’s intent to commit the crimes alleged.


[2]   We affirm.




      1
        This was a bifurcated trial. The jury convicted Jackson of Counts I through XIII during the first phase of
      the trial. Jackson waived his right to a jury trial for the second phase, and, after a bench trial, the trial court
      convicted him of Counts XIV and XVI. The court dismissed Count XV, unlawful use of a firearm, during
      phase two of the trial.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017                 Page 2 of 13
                                   Facts and Procedural History
[3]   On February 12, 2016, Shantaya Kirk, along with three other adults and one

      young child, drove from Chicago, Illinois, to Lafayette, Indiana, to return $500

      she had borrowed from Jackson. Kirk and the others met Jackson at his

      residence. Kirk spoke with Jackson inside his apartment, but she then returned

      to the car where the others waited. Jackson also went out to the vehicle and

      stood next to the passenger door.


[4]   After a few moments, Jackson fired a gun into the vehicle several times. Kirk

      instructed the driver to drive away from Jackson. Jackson continued firing at

      the vehicle until all of the bullets had been fired.2 Jackson shot Kirk once in the

      shoulder and once in the forearm. Kirk sustained a broken wrist and continues

      to have pain and numbness in her left shoulder. Jackson shot Steven Allen, one

      of the other adult passengers in the vehicle, in the head. Allen had a seizure as

      a result of the gunshot wound. A surgeon removed the bullet and part of

      Allen’s skull to allow the swelling in his brain to lessen. Allen continues to

      have seizures, he has problems with his left arm and leg, and he has behavioral

      and emotional issues as a result of the damage to his brain. The other

      occupants of the vehicles were uninjured.




      2
        During the trial, Jackson admitted to firing the gun multiple times; however, he argued that he had acted in
      self-defense.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017          Page 3 of 13
[5]   The State charged Jackson with five counts of attempted murder, two counts of

      aggravated battery, two counts of battery with a deadly weapon, two counts of

      battery resulting in serious bodily injury, one count of shooting a firearm, one

      count of pointing a gun, and one count of unlawful possession, all as felonies.

      The State also charged Jackson with a sentencing enhancement based on the

      unlawful use of a firearm in the commission of a felony and a habitual offender

      sentencing enhancement.


[6]   At the close of Jackson’s ensuing jury trial, the court instructed the jury as

      follows, without objection:

              The crime of attempted murder is defined as follows: A person
              attempts to commit a murder when, acting with the specific
              intent to kill another person, he engages in conduct that
              constitutes a substantial step toward killing that person.


                                                   Count I


              Before you may convict the Defendant of attempted murder as
              charged in Count I, the State must have proved each of the
              following elements beyond a reasonable doubt:


              1. The Defendant


              2. acting with the specific intent to kill Shantaya Kirk


              3. did fire a deadly weapon at said Shantaya Kirk


              4. which was conduct constituting a substantial step toward the
              commission of the intended crime of killing Shantaya Kirk; and

      Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017   Page 4 of 13
              5. did not act in self-defense.


              If the State failed to prove each of these elements beyond a
              reasonable doubt, you must find the Defendant not guilty of the
              crime of attempted murder, a felony, charged in Count I.


[7]   Appellant’s App. Vol. II at 81. The State’s charges with respect to the other

      victims of attempted murder read the same, except for the different names. The

      court also gave the jury the following instruction, again without objection:

      “Under the doctrine of transferred intent, the intent to harm one person may be

      treated as the intent to harm a different person when, through mistake or in-

      advertence, violence directed towards one person results in the injury to a

      different person.” Appellant’s App. Vol. II at 93.


[8]   The State had also provided State’s Proposed Instruction 1, which read as

      follows: “Intent to kill may be inferred from the use of a deadly weapon in a

      manner likely to cause death or great bodily injury, in addition to the nature of

      the attack, and the circumstances surrounding the crime.” Appellant’s App.

      Vol. II at 58. The trial court rejected the proposed instruction but gave the State

      permission to argue the underlying point in its closing arguments. The State

      then made the following statements during its closing argument, without

      objection:


              We know that [Jackson] shot [Kirk]. Acting with the specific
              intent to kill. Again we can’t figure out exactly what a person is
              thinking but we look at the totality of the circumstances. Intent
              to kill may be interpreted from the use of a deadly weapon in a
              manner likely to cause death or great bodily injury in addition to

      Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017   Page 5 of 13
              the nature of the attack and the circumstances surrounding a
              crime. This is the state of case law in the state of Indiana. This
              is how we can look at intent to kill in this case. It can be inferred
              from the use of a deadly weapon [in] a manner likely to cause
              death or great bodily harm along with the nature of the totality of
              the circumstances, the circumstances surrounding it.


      Tr. Vol. IV at 205-06. The jury found Jackson guilty on Counts I through XIII.

      After a bench trial on the remaining charges, the trial court found Jackson

      guilty on Counts XIV and XVI. The court then sentenced him to ninety-two

      years in the Department of Correction.3 This appeal ensued.


                                      Discussion and Decision
                           Issue One: Transferred Intent Jury Instruction

[9]   Jackson asserts that the trial court committed fundamental error when it

      instructed the jury on transferred intent. As the Indiana Supreme Court has

      explained:

              Appellate courts may, on rare occasions, resort to the
              fundamental error exception to address on direct appeal an
              otherwise procedurally defaulted claim. However, fundamental
              error is extremely narrow and available only when the record
              reveals a clearly blatant violation of basic and elementary
              principles, when the harm or potential for harm cannot be




      3
        The court entered judgement on Counts I through V, XIV, and XVI. The court sentenced Jackson based
      on Counts I, II, XIV, and XVI. The court concluded that Counts III, IV, and V merged into Counts I and II
      for purposes of sentencing. The Court declined to enter judgment on the remaining guilty verdicts.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017       Page 6 of 13
               denied, and when the violation is so prejudicial to the rights of
               the defendant as to make a fair trial impossible.


       Shoun v. State, 67 N.E.3d 635, 640 (Ind. 2017) (citations omitted). With respect

       to jury instructions, we usually consider: “(1) whether the tendered instruction

       correctly states the law; (2) whether there was evidence presented at trial to

       support giving the instruction; and (3) whether the substance of the instruction

       was covered by other instructions that were given.” McCowan v. State, 27

       N.E.3d 760, 763-64 (Ind. 2015) (citations omitted). We consider the

       instructions as a whole and do not reverse unless the whole of the instructions

       misled the jury as to the law in the case. Id. at 764.


[10]   It is well-established that the specific intent to kill is a necessary element of

       attempted murder. A jury 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 intent to kill the victim, engaged in conduct
               which was a substantial step toward such killing.


       Spradlin v. State, 569 N.E 2d 948, 950 (Ind. 1991).


[11]   Here, again, the trial court instructed the jury as follows:


               The crime of attempted murder is defined as follows: A person
               attempts to commit a murder when, acting with the specific intent to
               kill another person, he engages in conduct that constitutes a
               substantial step toward killing that person.



       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017   Page 7 of 13
                                                    Count I


               Before you may convict the Defendant of attempted murder as
               charged in Count I, the State must have proved each of the
               following elements beyond a reasonable doubt:


               1. The Defendant


               2. acting with the specific intent to kill Shantaya Kirk


               3. did fire a deadly weapon at said Shantaya Kirk


               4. which was conduct constituting a substantial step toward the
               commission of the intended crime of killing Shantaya Kirk; and


               5. did not act in self-defense.


               If the State failed to prove each of these elements beyond a
               reasonable doubt, you must find the Defendant not guilty of the
               crime of attempted murder, a felony, charged in Count I.


       Appellant’s App. Vol. II at 81 (emphasis added). The “specific intent”

       language was repeated in each of the other four counts in the jury instruction on

       attempted murder.


[12]   The trial court also provided the following instruction on transferred intent to

       the jury: “[u]nder the doctrine of transferred intent, the intent to harm one

       person may be treated as the intent to harm a different person when, through

       mistake or inadvertence, violence directed towards one person results in the

       injury to a different person.” Id. at 93.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017   Page 8 of 13
[13]   The Indiana Supreme Court has permitted the doctrine of transferred intent to

       be applied to attempted murder charges. In Blanche v. State, 690 N.E.2d 709,

       711 (Ind. 1998), the defendant was convicted of, among other things, attempted

       murder. The defendant raised several issues on appeal, including whether the

       evidence was sufficient to support his convictions and whether the jury was

       properly instructed on the specific intent requirement for attempted murder.

       During its discussion on the sufficiency of the evidence, the Indiana Supreme

       Court held that under the doctrine of transferred intent


               a defendant’s intent to kill one person is transferred when, by
               mistake or inadvertence, the defendant kills a third person; the
               defendant may be found guilty of the murder of the person who
               was killed, even though the defendant intended to kill another.
               White v. State, 638 N.E.2d 785, 786 (Ind. 1994). This doctrine
               also applies to the intent necessary for attempted murder. Straub
               v. State, 567 N.E.2d 87, 90-1 (Ind. 1991) (establishing that state
               need not introduce evidence that the defendant intended to kill
               the actual victim, but only that the defendant intended to kill
               someone).


       Id. at 712.


[14]   Here, Jackson does not challenge whether the language in the attempted

       murder instruction properly instructs the jury that a defendant is required to

       have specific intent to kill in order to be convicted of attempted murder.

       Rather, he asserts that the trial court committed fundamental error when it also

       provided the transferred intent instruction to the jury because it “blurred the

       distinction between specific and general intent and rendered the entire pool of


       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017   Page 9 of 13
jury instructions confusing and prejudicial.” Appellant’s Br. at 16. To support

his assertion, Jackson relies on Beasley v. State, in which the State charged the

defendant with attempted murder, and the trial court gave the following jury

instruction:


        TO CONVICT THE DEFENDANT OF ATTEMPTED
        MURDER, THE STATE MUST HAVE PROVED EACH OF
        THE FOLLOWING ELEMENTS:


        THE DEFENDANT LARRY E. BEASLEY


        (1) KNOWINGLY OR INTENTIONALLY.


        (2) ENGAGED IN CONDUCT BY KNOWINGLY
        STRIKING WITH A DEADLY WEAPON, A KNIFE, THE
        PERSON OF BEVERLY PRESTON, RESULTING IN
        SERIOUS BODILY INJURY.


        (3) WHICH CONDUCT CONSTITUTES A SUBSTANTIAL
        STEP TOWARD THE KNOWING OR INTENTIONAL
        KILLING OF ANOTHER HUMAN BEING.


        IF THE STATE FAILED TO PROVE EACH OF THE
        ELEMENTS BEYOND A REASONABLE DOUBT, THE
        DEFENDANT SHOULD BE FOUND NOT GUILTY.


        IF THE STATE DID PROVE EACH OF THE ELEMENTS
        BEYOND A REASONABLE DOUBT, THEN YOU SHOULD
        FIND THE DEFENDANT GUILTY OF ATTEMPTED
        MURDER, A CLASS A FELONY.




Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017   Page 10 of 13
       643 N.E.2d 346, 347 (Ind. 1994). On appeal, the Indiana Supreme Court held

       that the jury instruction constituted fundamental error because the jury

       could convict the defendant of attempted murder if he only acted

       knowingly. The court held that, “although we usually evaluate jury

       instructions as a whole, where the trial court lists the elements of attempted

       murder and includes an incorrect mens rea, this error cannot be cured by

       another instruction.” Id. at 348.

[15]   The present case is distinguishable from Beasley. The court in Beasley made it

       clear that the error could not be cured by another instruction when the elements

       of attempted murder included an incorrect mens rea. Here, however, the court

       properly instructed the jury on the elements of attempted murder, and the

       instructions make it clear to the jury that specific intent to kill is a necessary

       requirement for the offense of attempted murder. This transferred intent

       instruction did not introduce a new level of intent but, instead, referenced the

       intent required for the underlying offense.


[16]   When considered as a whole, the instructions did not mislead the jury. See

       McCowan, 27 N.E.3d at 764. Accordingly, we cannot say that the trial court

       committed fundamental error when it instructed the jury.


                               Issue Two: The State’s Closing Argument

[17]   Jackson also asserts that the court erred by permitting the State to include the

       language from the State’s Proposed Jury Instruction 1, which the court refused

       to read to the jury, in the State’s closing argument to the jury. But as an initial
       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017   Page 11 of 13
       matter we note that Jackson did not object during the State’s closing argument.

       Further, he does not argue on appeal that the alleged error was fundamental

       error. As such, we conclude that Jackson has not preserved this issue for

       appellate review. See Ind. Appellate Rule 46(A)(8)(a).


[18]   Jackson’s waiver notwithstanding, no error occurred on this issue. The trial

       court rejected the proposed instruction but gave the State permission to argue

       the point in its closing argument. The State then argued as follows:


               We know that [Jackson] shot [Kirk]. Acting with the specific
               intent to kill. Again we can’t figure out exactly what a person is
               thinking but we look at the totality of the circumstances. Intent
               to kill may be interpreted from the use of a deadly weapon in a
               manner likely to cause death or great bodily injury in addition to
               the nature of the attack and the circumstances surrounding a
               crime. This is the state of case law in the state of Indiana. This
               is how we can look at intent to kill in this case. It can be inferred
               from the use of a deadly weapon a manner likely to cause death
               or great bodily harm along with the nature of the totality of the
               circumstances, the circumstances surrounding it.


       Tr. Vol. IV at 205-06.

[19]   As we have explained:

               [i]t is well settled that the proper scope of final argument is
               within the trial court’s sound discretion. Taylor v. State, 457
               N.E.2d 594, 599 (Ind. Ct. App. 1983). On appeal, we will not
               find an abuse of discretion unless the trial court’s decision is
               clearly against the logic and effect of the facts and circumstances
               before it. Id. In seeking reversal of a conviction, however, it is
               incumbent upon the appellant to establish that the trial court’s


       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017   Page 12 of 13
               abuse of discretion was “clearly prejudicial” to his rights. See id.;
               Rouster v. State, 600 N.E.2d 1342, 1347 (Ind. 1992).


       Nelson v. State, 792 N.E.2d 588, 591-92 (Ind. Ct. App. 2003), trans denied.

[20]   In support of his argument, Jackson cites Dill v. State, where our Supreme Court

       held that “instructions that unnecessarily emphasize one particular evidentiary

       fact, witness, or phase of the case have long been disapproved.” 741 N.E.2d

       1230, 1232 (Ind. 2001). However, again, the issue in the instant appeal is not

       whether the trial court provided an improper instruction to the jury but whether

       the court properly allowed the State to inform the jury of the State’s evidentiary

       basis for Jackson’s intent. “[T]he mere fact that a jury may not be instructed on

       a certain point of law does not lead to the conclusion that argument concerning

       that point of law is also improper.” Weis v. State, 825 N.E.2d 896, 904 (Ind. Ct.

       App. 2005). The State’s comments during closing argument were not improper

       or misleading. Accordingly, we cannot say that the trial court erred when it

       allowed the State to make those statements during its closing argument, and we

       affirm Jackson’s convictions.


[21]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017   Page 13 of 13
