MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           Dec 31 2015, 9:04 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael G. Moore                                        Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Omar Davis,                                             December 31, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1506-CR-592
        v.                                              Appeal from the Marion Superior
                                                        Court, Criminal Division 5
State of Indiana,                                       The Honorable Grant Hawkins,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        49G05-1412-F1-55698



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-592 | December 31, 2015       Page 1 of 8
                                              Case Summary
[1]   Omar Davis (“Davis”) was convicted of two counts of Attempted Murder, as

      Level 1 felonies,1 for the shootings of George Powell (“Powell”) and Fred

      Stokes (“Stokes”). Davis appeals one of his convictions, presenting the sole

      issue of whether there was sufficient evidence to support his conviction for the

      attempted murder of Powell. We affirm.



                                Facts and Procedural History
[2]   On the evening of December 2, 2014, Powell picked up two acquaintances,

      Davis and Devin Gilbert (“Gilbert”), from the Family Dollar at 30th Street and

      Keystone Avenue in Indianapolis. Powell then drove the group to Stokes’s

      house, one half of a double located on the corner of Michigan and Oxford

      Streets. Powell knew Stokes because Stokes was a friend of Powell’s father

      (Stokes called Powell “nephew”). The group went to Stokes’s house because

      Gilbert “wanted to get his nose dirty” (Tr. 46), that is, use cocaine, and Powell

      knew he could get drugs from Stokes’s next door neighbor.


[3]   When the group arrived, they went to Stokes’s back door. After Powell

      vouched for Davis and Gilbert, Stokes let all three men inside. Powell then




      1
          Ind. Code §§ 35-42-1-1(1) & 35-41-5-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-592 | December 31, 2015   Page 2 of 8
      walked through the house to the front door, exited, and went next door to buy

      drugs. He was gone for approximately four to five minutes.


[4]   While Powell was gone, Davis and Gilbert each pulled out a handgun and

      pointed it at Stokes. Stokes thought one gun looked like a .380 or a 9 mm

      pistol, and the other looked like a 9 mm. Davis and Gilbert ordered Stokes to

      the ground, searched his pockets, and removed money, a wallet, and his watch.

      Davis then went upstairs while Gilbert held Stokes at gunpoint. As Davis came

      back downstairs, the men heard a knock at the door. Gilbert ordered Stokes to

      crawl to the front door and then stand up. Stokes asked who was at the door,

      and Powell responded. Davis told Stokes: “you say anything I will kill you.”

      (Tr. 107.) Gilbert said: “if you say anything you’re dead.” (Tr. 107.)


[5]   Stokes then opened the door and yelled “run nephew run” (Tr. 51) as he pushed

      Powell backwards and ran. Stokes heard a gunshot and was hit in the right

      shoulder blade and fell down. When he got up, he saw Davis and Gilbert

      pointing guns at him. He ran toward Michigan Street and heard multiple

      gunshots ring out from what sounded like two different guns. Stokes eventually

      knocked on a neighbor’s door and yelled for them to call the police. He then

      circled back to his house, where he found Powell moaning on the front porch.

      Powell had been shot twice in the head and once in the arm.


[6]   Law enforcement and emergency personnel arrived quickly, and Stokes and

      Powell were transported to the hospital. Stokes was treated in the emergency

      room and discharged that night. Powell was hospitalized for three weeks,


      Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-592 | December 31, 2015   Page 3 of 8
      during which he could not speak and was partially paralyzed on his right side.

      At the time of trial, his right arm was still injured and he had difficulty with

      speech and thought.


[7]   During the ensuing investigation, a crime scene specialist from the Indianapolis

      Metropolitan Police Department photographed multiple bullet holes in the front

      door of Stokes’s house. She also recovered eight spent cartridge cases from the

      living and dining rooms: six .380 auto and two 9 mm Lugar caliber cartridge

      cases. A forensic ballistics examiner determined that the six .380 caliber

      cartridge cases were fired from the same gun, and that a different gun fired both

      of the 9 mm cartridge cases.


[8]   On December 19, 2014, the State charged Davis with two counts of Attempted

      Murder, as Level 1 felonies (“Count 1” for Powell and “Count 2” for Stokes);

      Robbery Resulting in Serious Bodily Injury, as a Level 2 felony2 (“Count 3”);

      and Unlawful Possession of a Firearm by a Serious Violent Felon, a Level 4

      felony3 (“Count 4”).


[9]   A jury trial was held on May 18 and 19, 2015, at the conclusion of which Davis

      was found guilty of Counts 1 and 2 and not guilty of Count 3. The State moved

      to dismiss Count 4. On May 29, 2015, Davis was sentenced to thirty-five years




      2
          I.C. § 35-42-5-1.
      3
          I.C. § 35-47-4-5(c).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-592 | December 31, 2015   Page 4 of 8
       on Count 1 and thirty years on Count 2, with the sentences to be served

       consecutively.


[10]   Davis now appeals his conviction for the attempted murder of Powell.



                                 Discussion and Decision
[11]   Our standard of review for sufficiency of the evidence claims is well settled.

       We consider only the probative evidence and reasonable inferences supporting

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

       the credibility of witnesses or reweigh 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. (quoting Jenkins v. State, 726

       N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

       reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens

       v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).


[12]   A person who knowingly or intentionally kills another human being commits

       murder. I.C. § 35-42-1-1. A person attempts to commit a crime when, acting

       with the culpability required for commission of the crime, the person engages in

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

       I.C. § 35-41-5-1. “However, our supreme court has emphasized the importance

       of requiring specific intent to kill before a defendant can be convicted of

       attempted murder, despite that the culpability requirement for murder includes




       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-592 | December 31, 2015   Page 5 of 8
       the lesser standard of ‘knowingly.’” Perez v. State, 872 N.E.2d 208, 211 (Ind. Ct.

       App. 2007), trans. denied.


[13]   The State charged that on or about December 2, 2014, Davis “did attempt to

       commit the crime of Murder, which is to intentionally kill another human

       being, namely: George Powell, by engaging in conduct, that is: shooting a

       deadly weapon that is, a handgun, at and against the person of George Powell,

       with the specific intent to kill George Powell, which conduct constituted a

       substantial step toward the commission of said crime of Murder[.]” (App. 25-

       26.)


[14]   Davis concedes that the State presented sufficient evidence to support his

       conviction for the attempted murder of Stokes because there was evidence that

       Davis and Gilbert “pointed guns at Stokes, hit him, threatened him and shot at

       him.” (Appellant’s Br. 4.) However, he argues that the State “failed to

       introduce similar evidence with respect to Powell,” and thus there was

       insufficient evidence that he acted with specific intent to kill Powell.

       (Appellant’s Br. 7.) Davis also argues that because there were multiple

       shooters, “[t]he jury was left to speculate who shot whom, which is insufficient

       to sustain a conviction.” (Appellant’s Br. 4.)


[15]   With respect to identification, Stokes saw both Davis and Gilbert with

       handguns just before he and Powell were shot. Multiple shots were fired.

       Stokes was hit once and Powell was hit three times. After the shooting, police

       recovered eight spent cartridge casings from the crime scene. A forensic


       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-592 | December 31, 2015   Page 6 of 8
       ballistic examiner determined the casings were fired from two different

       handguns. This supports the inference that Davis was one of two active

       shooters in the home when Powell and Stokes were shot. Based on this

       evidence and the resulting reasonable inferences supporting the verdict, a

       reasonable jury could have found that Davis shot a deadly weapon at Powell.

       See Houston v. State, 730 N.E.2d 1247, 1249-50 (Ind. 2000) (holding there was

       sufficient evidence to support defendant’s conviction for murder where there

       were multiple shooters, ballistics experts testified that four to six guns were used

       in the shooting, the victim was shot multiple times, and several of the wounds

       would have been fatal).


[16]   With respect to intent, Indiana courts have held:

               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).
               Intent to kill may be further established by a defendant’s use of a
               deadly weapon against the victim coupled with an announced
               intention to kill. Schilling v. State, 268 Ind. 534, 536, 376 N.E.2d
               1142, 1143 (1978). 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).


       Corbin v. State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006).


[17]   Here, before Stokes opened the door, Stokes asked Powell to identify himself.

       After Stokes opened the door, he yelled “run nephew run” (Tr. 51), further


       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-592 | December 31, 2015   Page 7 of 8
       confirming Powell’s identity. Therefore, Davis was aware that Powell was on

       the other side of the door when he pointed a gun and fired in Stokes’s direction.

       Moreover, the majority of the gunshots came after Stokes was shot in the back,

       supporting the inference that the shooters continued to shoot in Powell’s

       direction after attempting to murder Stokes. The State therefore presented

       sufficient evidence that Davis had specific intent to kill Powell.



                                               Conclusion
[18]   There was sufficient evidence to support Davis’s conviction for the attempted

       murder of Powell.


[19]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-592 | December 31, 2015   Page 8 of 8
