MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    Feb 18 2016, 8:52 am
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
Brian J. May                                             Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana
                                                         Brian Reitz
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Stewart,                                           February 18, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1507-CR-915
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff                                       Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1405-FA-9



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1507-CR-915 | February 18, 2016        Page 1 of 4
[1]   James Stewart appeals his conviction for Class A Felony Attempted Murder, 1

      arguing that the evidence was insufficient to support the conviction. Finding

      the evidence sufficient, we affirm.


                                                        Facts
[2]   On April 19, 2014, Stewart was housed at the St. Joseph County Jail. He was

      in a lockdown area where inmates are only allowed one hour of recreation

      outside their cells, and these hours are staggered so that the inmates do not have

      access to each other. On that day, Gregory Spurgeon, Stewart’s cell neighbor,

      pulled down his pants in front of Stewart’s cell and pressed his bare backside

      against Stewart’s glass door.2


[3]   The following day, Stewart took his recreation hour from 7 to 8 p.m. When the

      jail guard ordered Stewart to return to his cell, Stewart responded that he would

      but actually hid on the floor below his cell. After the jail guard, thinking that

      Stewart had returned to his cell, let Spurgeon out of his cell, Spurgeon walked

      to the restroom. Stewart followed him, approached him from behind, and

      struck him with a closed fist. Stewart then placed Spurgeon in a chokehold. As

      the guard radioed for help, Stewart continued to choke his victim for roughly a

      minute and a half, and Spurgeon lost consciousness. A forensic pathologist

      would later testify that the situation was life-threatening.




      1
          Ind. Code §§ 35-42-1-1, 35-41-5-1.
      2
          This action is known in some quarters as “mooning.”


      Court of Appeals of Indiana | Memorandum Decision 71A05-1507-CR-915 | February 18, 2016   Page 2 of 4
[4]   Jail officers arrived and ordered Stewart to release his victim—he finally

      complied. As the officers handcuffed Stewart, he said, “I was going to kill him,

      he put his bare ass on my cell door yesterday.” Tr. 28. The officers noticed that

      Spurgeon remained on the ground, face-down, unconscious, his eyes rolling

      back into his head. A later investigation revealed that Stewart’s food slot had

      been jammed with paper, which would have enabled Stewart to reach out of his

      cell and grab a person walking past.


[5]   On May 14, 2014, the State charged Stewart with class A felony attempted

      murder. Stewart waived his right to a trial by jury. The State presented a video

      recording of the attack, along with the testimony of the victim, the jail guards,

      and a forensic pathologist. The trial court found Stewart guilty as charged and

      sentenced him to forty years imprisonment. Stewart now appeals.


                                   Discussion and Decision
[6]   Stewart has one argument on appeal: he argues that the State lacked sufficient

      evidence to prove beyond a reasonable doubt his intent to commit murder.


[7]   When reviewing sufficiency of the evidence claims, we neither reweigh the

      evidence nor reassess witness credibility. Woods v. State, 768 N.E.2d 1024, 1028

      (Ind. Ct. App. 2002). Rather, we look to the evidence most favorable to the

      verdict and reasonable inferences drawn therefrom. Id. We will affirm the

      conviction unless no rational factfinder could have found the defendant guilty

      beyond a reasonable doubt. Id.



      Court of Appeals of Indiana | Memorandum Decision 71A05-1507-CR-915 | February 18, 2016   Page 3 of 4
[8]    The State was required to prove that Stewart, with the intent to commit the

       crime of murder, engaged in a substantial step toward the commission of

       murder. I.C. § 35-41-5-1; I.C. § 35-42-1-1. Stewart argues that this burden was

       not met because the forensic pathologist could not specify precisely how close

       Spurgeon was to dying. Stewart also stresses the fact that he released Spurgeon

       after the guards showed up. “Defendant believes because he caused the victim

       to black out and not experience a true near death experience, he should be

       found guilty of the lesser and included offense [of strangulation].” Appellant’s

       Br. 9.


[9]    We disagree. The State is not required to show that the defendant nearly

       succeeded in committing murder, it only needs to show an “overt act beyond

       mere preparation and in furtherance of the intent to commit the crime.” Jackson

       v. State, 683 N.E.2d 560, 566 (Ind. 1997). When Stewart wrapped his arms

       around Spurgeon’s neck, Stewart clearly committed such an overt act, and the

       factfinder had sufficient evidence from which it could find that this was a

       substantial step toward the commission of murder. And the factfinder had

       sufficient evidence from which it could find that Stewart intended to kill

       Spurgeon, given Stewart’s statement, “I was going to kill him.” Tr. 28.

       Stewart’s argument amounts to a request that we reweigh the evidence and

       substitute our judgment for that of the factfinder—a request we deny.


[10]   The judgment of the trial court is affirmed.


       Bradford, J., and Pyle, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1507-CR-915 | February 18, 2016   Page 4 of 4
