                                                                       FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                     Mar 20 2012, 9:11 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                                CLERK
                                                                          of the supreme court,
                                                                          court of appeals and
                                                                                 tax court




ATTORNEY FOR APPELLANT:                                  ATTORNEYS FOR APPELLEE:

TIMOTHY J. LEMON                                         GREGORY F. ZOELLER
Knox, Indiana                                            Attorney General of Indiana

                                                         RYAN D. JOHANNINGSMEIER
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                  IN THE
                        COURT OF APPEALS OF INDIANA

WILLIAM SINGLETON,                                       )
                                                         )
          Appellant-Defendant,                           )
                                                         )
                  vs.                                    )       No. 75A05-1106-CR-346
                                                         )
STATE OF INDIANA,                                        )
                                                         )
          Appellee-Plaintiff.                            )


                         APPEAL FROM THE STARKE CIRCUIT COURT
                          The Honorable Lizbeth W. Pease, Special Judge
                                Cause No. 75C01-0301-FA-0011


                                            March 20, 2012

                   MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge



1
    Some documents list the trial court cause number as 75C01-0301-FA-001; others use 75C01-0304-FA-001.
                                          Case Summary

          Pursuant to Indiana Post-Conviction Rule 2, William Singleton (“Singleton”)

belatedly appeals his convictions for Attempted Voluntary Manslaughter, a Class A felony,2

and Aggravated Battery, a Class B felony.3              We affirm the Attempted Voluntary

Manslaughter conviction and remand with instructions to vacate the Aggravated Battery

conviction and sentence.

                                               Issues

          Singleton presents three issues for review:

          I.      Whether there is sufficient evidence to support his conviction for
                  Attempted Voluntary Manslaughter;
          II.     Whether his multiple convictions violate double jeopardy principles;
                  and
          III.    Whether the trial court committed fundamental error by failing to
                  properly instruct the jury on Attempted Voluntary Manslaughter.

                                    Facts and Procedural History

          During the evening of January 8, 2003, Michael Berg (“Berg”) was home watching

television, when he saw headlights from a vehicle pulling into the driveway. Berg went to

investigate and saw someone puncture the tires of his vehicle and smash the windshield.

Berg yelled at the person, who then ran back to a waiting van. When the dome-light of the

van illuminated, Berg recognized the man as Singleton, the brother-in-law of Berg’s

deceased wife.

          Singleton started running toward Berg, who expected to be tackled and assumed a


2
    Ind. Code §§ 35-41-5-1, 35-42-1-3.
3
    Ind. Code § 35-42-2-1.5.
                                                 2
fighting stance. Singleton exclaimed, “I’m going to fuckin kill you,” and Berg felt a sharp

pain in his chest. (Tr. 31.) Berg began to run. Singleton called after him “I’m going to

fuckin kill your mom too” and pursued Berg as Berg ran around his mother’s trailer home.

(Tr. 31.) Berg, who was applying pressure to a wound, could feel blood running through his

fingers. He ran until he tumbled over a fence into a neighbor’s yard. Singleton gave up the

pursuit.

       Berg’s neighbor called 9-1-1; emergency responders found Berg in a pool of blood.

He was airlifted to a hospital in Fort Wayne, where he was treated for a “potentially lethal-

type wound.” (Tr. 287.) An instrument, likely a knife, had entered Berg’s chest cavity,

piercing his lung, partially slicing a rib, and passing within a few millimeters of his heart.

       Singleton was arrested and charged with Attempted Voluntary Manslaughter and

Aggravated Battery. On April 7, 2005, a jury convicted him as charged; the trial court

entered judgments of conviction upon both counts. Singleton received concurrent sentences

of thirty and ten years, respectively. On June 1, 2011, Singleton filed a belated notice of

appeal.

                                  Discussion and Decision

                               I. Sufficiency of the Evidence

       Pursuant to Indiana Code section 35-41-5-1(a), a person attempts to commit a crime

when, acting with the culpability required for commission of that crime, he engages in

conduct that constitutes a substantial step toward commission of the crime. A person

commits voluntary manslaughter when he knowingly or intentionally kills another human

                                              3
being while acting under sudden heat. Ind. Code § 35-42-1-3(a). The offense is elevated

from a Class B felony to a Class A felony if it is committed by means of a deadly weapon.

Ind. Code § 35-42-1-3.

       Accordingly, to support a conviction for attempted voluntary manslaughter, the

evidence must establish, beyond a reasonable doubt, that Singleton intentionally or

knowingly attempted to kill Berg, while acting in sudden heat. Singleton claims that the

evidence fails to establish that he intended to kill Berg.

       Intent is a mental function and therefore, absent an admission, the fact-finder must

resort to reasonable inferences based upon an examination of the surrounding circumstances

to determine whether, from the person’s conduct and the natural consequences thereof, a

showing or inference of intent to commit that conduct exists. Isom v. State, 589 N.E.2d 245,

247 (Ind. Ct. App. 1992), trans. denied. Intent to kill may be inferred from the deliberate use

of a deadly weapon in a manner likely to cause death or serious injury. Henley v. State, 881

N.E.2d 639, 652 (Ind. 2008).

       When reviewing the sufficiency of the evidence to support a conviction, appellate

courts must consider only the probative evidence and the reasonable inferences supporting

the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). In so doing, we do not assess

witness credibility or reweigh the evidence. Id. We will affirm the conviction unless no

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

doubt. Id.

       Here, the evidence in favor of the judgment indicates that Singleton shouted to Berg,

                                              4
“I’m going to fuckin kill you,” ran toward Berg, and stabbed him in the chest. (Tr. 214.) As

Berg fled, Singleton continued to chase him, threatening to kill Berg’s mother as well. Berg

sustained a two-centimeter wide wound, just millimeters from his heart.

       The testimony regarding Singleton’s words and actions is sufficient to permit the jury

to infer that Singleton intended to kill Berg. Berg’s insistence that the evidence is

insufficient because a knife was never located is merely an invitation to reweigh the

evidence. There is sufficient evidence to sustain Singleton’s conviction for Attempted

Voluntary Manslaughter.

                                    II. Double Jeopardy

       The double jeopardy clause of the Indiana Constitution provides, “No person shall be

put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. Our Indiana Supreme

Court has held that two or more 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. Richardson v.

State, 717 N.E.2d 32, 49 (Ind. 1999).

       Aside from the constitutional actual evidence test, our Indiana Supreme Court has

identified five common law or statutory double jeopardy categories: (1) conviction and

punishment for a crime which is a lesser-included offense of another crime for which the

defendant has been convicted and punished, (2) conviction and punishment for a crime which

consists of the very same act as another crime for which the defendant has been convicted

                                             5
and punished, (3) conviction and punishment for a crime which consists of the very same act

as an element of another crime for which the defendant has been convicted and punished, (4)

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, and (5) conviction and punishment for the crime of conspiracy

where the overt act that constitutes an element of the conspiracy charge is the very same act

as another crime for which the defendant has been convicted and punished. Guyton v. State,

771 N.E.2d 1141, 1143 (Ind. 2002).

       The second category is implicated here. The State alleged in Count I that Singleton

committed Attempted Voluntary Manslaughter by stabbing Berg in the chest with a sharp

object. Count II alleged that Singleton committed Aggravated Battery by stabbing Berg in

the chest with a sharp object. As the State concedes, a single act having been alleged and

proven, the multiple convictions cannot stand. We therefore vacate the Aggravated Battery

conviction.

                                    III. Jury Instruction

       Finally, Singleton contends that the trial court committed fundamental error by giving

a jury instruction that added “sudden heat” as an element of the crime of Attempted

Voluntary Manslaughter to be proven by the State.

       At the time of Singleton’s offense, Indiana’s voluntary manslaughter statute provided:

       A person who knowingly or intentionally kills another human being while
       acting under sudden heat commits Voluntary Manslaughter, a Class B felony.
       The offense is a Class A felony if it is committed by means of a deadly
       weapon.
                                           6
Ind. Code § 35-42-1-3. “Sudden heat” is characterized as “anger, rage, resentment, or terror

sufficient to obscure the reason of an ordinary person, preventing deliberation and

premeditation, excluding malice, and rendering a person incapable of cool reflection.”

Dearman v. State, 743 N.E.2d 757, 760 (Ind. 2001). It is not an element of Voluntary

Manslaughter. Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002). Rather, it is that which

distinguishes Voluntary Manslaughter from Murder. Id.

       Here, the jury was instructed:

       The crime of voluntary manslaughter is defined by statute as follows:
       A person who knowingly or intentionally kills another human being while
       acting under sudden heat and with the use of a deadly weapon commits
       voluntary manslaughter. A person attempts to commit voluntary manslaughter
       when, acting with the culpability required for commission of voluntary
       manslaughter, he engages in conduct that constitutes a substantial step toward
       commission of voluntary manslaughter. To convict the defendant of attempted
       voluntary manslaughter, the State must have proved each of the following
       beyond a reasonable doubt:
       1.      The Defendant
       2.      knowingly or intentionally
       3.      with intent to kill
       4.      did stab Michael Berg in the chest
       5.      with a deadly weapon
       6.      under sudden heat
       7.      which was conduct constituting a substantial step toward the
               commission of the crime of voluntary manslaughter.
       If the State failed to prove each of these elements beyond a reasonable doubt,
       you should find the defendant not guilty under Count I.
       If the State did prove each of these elements beyond a reasonable doubt, you
       should find the defendant guilty of attempted voluntary manslaughter under
       Count I.

(App. 61.) As such, the instruction did not properly state that “sudden heat” is a mitigating

factor, reducing what would otherwise be murder to voluntary manslaughter. However, the

                                             7
fundamental error exception is extremely narrow and applies only when the error constitutes

a blatant violation of basic principles, the harm or potential for harm is substantial, and the

resulting error denies the defendant fundamental due process. Delarosa v. State, 938 N.E.2d

690, 694 (Ind. 2010). This exception is available only in egregious circumstances. Id.

       Here, the State did not charge Singleton with Attempted Murder. The jury was not

asked to determine whether Attempted Murder should be reduced to Attempted Voluntary

Manslaughter due to the existence of the mitigating factor of “sudden heat.” Rather, the

State had conceded mitigation. In these circumstances, we fail to see how Singleton was

prejudiced by the inclusion of “sudden heat” as if it were an element of the charged crime.

                                         Conclusion

       There is sufficient evidence to support Singleton’s conviction for Attempted

Voluntary Manslaughter. His conviction for Aggravated Battery, arising from the same act,

is vacated. He has demonstrated no fundamental error in the instruction of the jury.

       Affirmed in part; reversed in part; remanded with instructions.

BAKER, J., and DARDEN, J., concur.




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