                                                                           FILED
                                                                      Jun 28 2019, 10:05 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          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
                                                           Chandra K. Hein
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Alain Kiiwon Powell, Jr.,                                  June 28, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1812
        v.                                                 Appeal from the Tippecanoe
                                                           Circuit Court
State of Indiana,                                          The Honorable Sean M. Persin,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           79C01-1703-F1-4



May, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019                              Page 1 of 11
[1]   Alain Kiiwon Powell Jr. appeals his conviction of Level 1 felony attempted

      murder 1 for the shooting of Davyn Nichols. He presents three issues for our

      review, which we restate as:


                 1. Whether the State presented sufficient evidence Powell
                 committed Level 1 felony attempted murder for the shooting of
                 Davyn Nichols;


                 2. Whether the trial court abused its discretion when it gave a
                 modified version of the State’s proffered jury instruction
                 regarding transferred intent; and


                 3. Whether Powell’s two convictions of Level 1 felony attempted
                 murder violated double jeopardy.


      We affirm in part, reverse in part, and remand.



                                Facts and Procedural History
[2]   In March 2017, Travis Nichols purchased a Ford Taurus from Tyler Howard.

      Shortly thereafter, Howard asked to borrow the vehicle, and he did not return

      it. On March 20, 2017, Travis, Davyn Nichols, and Troy Clements drove in a

      black Cadillac to the house where they believed the Taurus was parked. Travis

      was driving, Davyn was in the passenger seat, and Clements was in the back

      seat of the black Cadillac.




      1
          Ind. Code § 35-42-1-1 (murder); Ind. Code § 35-41-5-1 (attempt).


      Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019            Page 2 of 11
[3]   Around the same time Powell, Brittany Warren, and a third unidentified person

      were in an orange Cadillac. Warren received a call from Howard, who told her

      that Travis was in a black Cadillac in front of Howard’s house. Howard

      indicated he suspected Travis was there to take back the Taurus and there might

      be a physical altercation.


[4]   Powell drove the orange Cadillac to Howard’s house and saw the black

      Cadillac with Travis in the driver’s seat. Powell pulled up to the black Cadillac

      so that the driver’s side of the orange Cadillac was next to the passenger side of

      the black Cadillac. Powell rolled down the window and asked if Travis “got a

      problem with” Howard, whom Powell referred to as his “brother.” (Tr. Vol. II

      at 86-7.) Powell and Travis then began to argue.


[5]   Davyn saw Powell holding a gun and told Travis that Powell had a gun. Travis

      said to Powell, “why you bring a gun to a fight for you know I aint got no gun.”

      (Id. at 126) (errors in original). Travis started to pull away from Powell, and

      Powell fired five to six shots at Travis’ vehicle. Two of the shots hit Davyn,

      who suffered multiple injuries and would have died without medical attention.


[6]   Police later apprehended Powell at his father’s apartment. On March 24, 2017,

      the State charged Powell with three counts of Level 1 felony attempted murder

      for the attempted murders of Clements, Travis, and Davyn; Level 3 felony

      aggravated battery of Davyn; 2 Level 5 felony battery of Davyn by means of a



      2
          Ind. Code § 35-42-2-1.5.


      Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019        Page 3 of 11
      deadly weapon; 3 Level 5 felony battery of Davyn resulting in bodily injury; 4

      Level 5 felony criminal recklessness for firing the gun; 5 and Class A

      misdemeanor carrying a handgun without a license. 6 The State subsequently

      filed an information alleging Powell’s sentence could be enhanced because he

      used a firearm to commit these crimes. 7 In addition, the State filed a charging

      information alleging Powell committed Level 5 felony carrying a handgun

      without a license with a prior felony conviction. 8


[7]   After a four-day trial, the jury returned a not guilty verdict on the attempted

      murder charge for Clements and guilty verdicts on all other charges. The jury

      was dismissed, and then the trial court found Powell was eligible for the firearm

      enhancement. On July 9, 2018, the trial court entered convictions for two

      counts of attempted murder and one count of carrying a handgun without a

      license. The trial court sentenced Powell to thirty-two years for each attempted

      murder conviction, to be served consecutive to each other but concurrent with

      five years for Level 5 felony carrying a handgun without a license with a prior




      3
          Ind. Code § 35-42-2-1(g)(2).
      4
          Ind. Code § 3542-2-1(g)(1).
      5
          Ind. Code § 35-42-2-2(b)(2).
      6
          Ind. Code § 35-47-2-1.
      7
          Ind. Code § 35-50-2-11.
      8
          Ind. Code § 35-47-2-1(e)(2)(B).


      Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019         Page 4 of 11
      felony conviction. Thus, the court imposed an aggregate sentence of sixty-four

      years.



                                  Discussion and Decision
                                    Sufficiency of the Evidence
[8]   When reviewing sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      fact-finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the

      fact-finder’s role, and not ours, to assess witness credibility and weigh the

      evidence to determine whether it is sufficient to support a conviction. Id. To

      preserve this structure, when we are confronted with conflicting evidence, we

      consider it most favorably to the ruling. Id. We affirm a conviction unless no

      reasonable fact-finder could find the elements of the crime proven beyond a

      reasonable doubt. Id. It is therefore not necessary that the evidence overcome

      every reasonable hypothesis of innocence; rather, the evidence is sufficient if an

      inference reasonably may be drawn from it to support the decision. Id. at 147.


[9]   Powell argues the State did not present sufficient evidence to support his

      conviction of Level 1 felony attempted murder of Davyn. Powell concedes the

      evidence supports his conviction for the attempted murder of Travis because

      Powell drove up to Travis’ vehicle and spoke directly to Travis. However,

      Powell contends the State did not prove he possessed the requisite intent to kill

      Davyn, despite the fact she was the person injured in the shooting. We

      disagree.
      Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019         Page 5 of 11
[10]   Murder is defined as “knowingly or intentionally kill[ing] another human

       being,” Ind. Code § 35-42-1-1(1) (2017), and attempt is defined as acting with

       the culpability required for a crime while taking a substantial step toward

       committing that crime. Ind. Code § 35-41-5-1 (2014) (elements of attempt).

       However, our Indiana Supreme Court has held that, for a person to be

       convicted of attempted murder, “the State must prove beyond a reasonable

       doubt that the defendant [acted] with intent to kill the victim.” Sprandlin v.

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


[11]   In Corbin v. State, 840 N.E.2d 424 (Ind. Ct. App. 2006), we summarized existing

       precedent regarding the State’s burden in presenting evidence of intent in an

       attempted murder case:


               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 circumstances surrounding the
               crime. Gall v. State, 811 N.E.2d 969, 975 (Ind. Ct. App. 2004). . .
               . Further, our supreme court held that discharging a weapon in
               the direction of a victim is substantial evidence from which the
               jury could infer intent to kill. Leon v. State, 525 N.E.2d 331, 332
               (Ind. 1988).


       Id. at 429.


[12]   Here, Powell confronted Travis after Howard called Powell and indicated

       Travis may instigate a physical confrontation over the Ford Taurus. Powell

       and Travis traded words regarding Howard, and Travis testified he was “being

       another smart butt.” (Tr. Vol. II at 126.) While Powell and Travis were


       Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019         Page 6 of 11
       speaking to each other, Davyn commented that Powell was loading a gun.

       Powell’s vehicle was situated on Davyn’s side of Travis’ vehicle, as Powell’s

       driver side was adjacent to the passenger side of Travis’ vehicle. Powell then

       aimed at Travis’ vehicle and fired five to six shots as Travis drove away. Based

       on the ongoing animosity between the parties, Powell’s use of a deadly weapon,

       and the act of firing multiple shots on the side where Davyn was sitting, we

       conclude the State presented sufficient evidence Powell had intent to kill Davyn

       and thus committed Level 1 felony attempted murder against Davyn. See Perez

       v. State, 872 N.E.2d 208, 214 (Ind. Ct. App. 2007) (ongoing hostilities between

       parties and use of a deadly weapon sufficient to prove Perez committed

       attempted murder when he fired shots at a car containing rival gang members),

       trans. denied.


                     Jury Instruction Regarding Transferred Intent
[13]   To preserve a claim of error in the giving of a jury instruction, trial counsel

       must timely object and clearly identify the “claimed objectionable matter and

       the grounds for the objection.” Scisney v. State, 701 N.E.2d 847, 849 (Ind.

       1998). Here, the State proffered an instruction that stated:


               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 inadvertence, violence directed
               towards one person results in injury to a different person.


               In a situation where there is an intent to kill one person, but a
               different person suffers the injury and dies, the intent to kill the


       Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019              Page 7 of 11
               first person may serve as proof of the intent to kill the actual
               victim.


               This doctrine may be applied to the intent necessary for
               attempted murder.


       (App. Vol. II at 198.) Powell objected, arguing,


               I don’t have a problem with the first paragraph for transfer and
               intent but the second paragraph when it starts to talk in a
               situation and this was their proposed instruction a situation
               where there is an intent to kill a person but a different person
               suffers injuries and dies, my argument Judge on this is these are
               facts that are not in evidence and facts and instructions that point
               to anything must be in the evidence and there is a case that states
               that using an instruction that assumes facts that are not in
               evidence is fundamental error and I would say that none of those
               fact, no one died those facts are not in evidence[.]


       (Tr. Vol. III at 165) (errors in original). After discussion between the parties

       and the trial court, Powell agreed to use of the instruction as modified, which

       stated, “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 inadvertence, violence directed towards one person results in injury to a

       different person.” (App. Vol. II at 198.)


[14]   On appeal, Powell argues the instruction regarding transferred intent, to which

       he assented to upon modification, is an incorrect statement of law. However,

       Powell invited the error of which he now complains by agreeing to use a

       modified version of the transferred intent instruction. See Wright v. State, 828


       Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019          Page 8 of 11
N.E.2d 904, 907 (Ind. 2005) (under the invited error doctrine, “a party may not

take advantage of an error that she commits, invites, or which is the natural

consequence of her own neglect or misconduct”). “Invited errors are not

subject to appellate review, and a party therefore may not invite error, and then

subsequently argue that the error requires reversal.” Oldham v. State, 779

N.E.2d 1162, 1171 (Ind. Ct. App. 2002), trans. denied. As Powell assented to

the use of a transferred intent instruction, he cannot now complain the

instruction was an incorrect statement of the law. See Gamble v. State, 831

N.E.2d 178, 187 (Ind. Ct. App. 2005) (“[e]rror invited by the complaining party

is not reversible error”), trans. denied.


                                           Double Jeopardy
Article 1, Section 14 of the Indiana Constitution provides that “no person shall

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

same 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.”

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). 9 Powell argues his

convictions of Level 1 felony attempted murder violate double jeopardy because

the evidence presented was identical for each count. We agree.




9
  The holding in Richardson was modified by Garrett v. State, 992 N.E.2d 710 (Ind. 2013). However, Garrett
further clarified the holding in Richardson as it applied to retrial after an acquittal, which is not at issue in this
case. Id. at 723.

Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019                                        Page 9 of 11
[15]   Here, the State presented evidence Powell shot at Travis’ car five times,

       ultimately injuring Davyn. As we noted supra, there was no additional

       evidence that Powell intended to kill a specific victim or took additional steps to

       kill a specific victim. Thus, it is possible that some or all of the evidence used to

       prove Powell’s attempted murder of Travis could also be used to prove Powell’s

       attempted murder of Davyn, and we conclude Powell’s two convictions of

       Level 1 felony attempted murder violate his right against double jeopardy. See

       Curry v. State, 740 N.E.2d 162, 166-7 (Ind. Ct. App. 2000) (holding violation of

       double jeopardy based on actual evidence test in an incident involving a “single

       incident of brutality”), trans. denied.


[16]   Accordingly, we vacate the Level 1 felony conviction involving Davyn. Here

       the trial court merged Powell’s guilty verdict of Level 3 felony aggravated

       battery into the Level 1 felony attempted murder conviction as it related to

       Davyn. As we have reversed that attempted murder conviction, it is therefore

       appropriate for the trial court to reinstate the Level 3 felony aggravated battery

       conviction and sentence Powell accordingly. See Ritchie v. State, 243 Ind. 614,

       618, 189 N.E.2d 575, 576 (1963) (“review court, in a proper case, may modify a

       judgment of conviction below and affirm it as a conviction of a lesser degree of

       the offense charged, or of a lesser crime included therein, where the errors do

       not affect the conviction of the lesser offense”) (quoting 5 Am.Jur.2d Appeal

       and Error § 938).



                                                Conclusion
       Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019         Page 10 of 11
[17]   We hold the State presented sufficient evidence to prove Powell committed

       Level 1 felony attempted murder as to Davyn. Additionally, the trial court did

       not commit fundamental error when it allowed an instruction regarding

       transferred intent. However, Powell’s two attempted murder convictions

       violate double jeopardy because they arose from the same incident of brutality

       and thus we vacate Powell’s conviction of Level 1 felony attempted murder as

       to Davyn, reinstate his conviction for Level 3 felony aggravated battery as to

       Davyn, and remand to the trial court for resentencing.


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


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019      Page 11 of 11
