Opinion
24A-CR-160
11-21-2024
Bertrum Anderson, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C. Lafayette, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Tippecanoe Superior Court The Honorable Steven P. Meyer, Judge Trial Court Cause No. 79D02-2305-F1-11.
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C. Lafayette, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] Bertrum Anderson, Jr., appeals his convictions for Level 1 felony attempted murder, two counts of Level 3 felony attempted aggravated battery, and Level 5 felony unlawful carrying of a handgun. Upon review, we conclude that the evidence was sufficient to sustain Anderson's attempted-murder and attempted-aggravated-battery convictions. However, we agree with the parties that the trial court imposed an impermissible double enhancement in sentencing Anderson and, as a result, remand to the trial court for a new sentencing hearing.
Facts and Procedural History
[¶2] On May 6, 2023, Donald Lahay was working at a convenience store in Lafayette when he was approached by a man later identified as Anderson. Anderson told Lahay to "get behind the counter and do your f[*****]g job." Tr. Vol. II p. 139. Anderson tried to purchase a bag of peanuts that cost around $4.00 with $2.00. Lahay took the peanuts from Anderson and instructed him to leave the store. Anderson responded that he was going to "beat [Lahay's] a[**]" and invited Lahay "to go outside." Tr. Vol. II p. 140.
[¶3] Anderson left the store but returned a few minutes later. At first, there was discussion of whether Anderson and Lahay "were cool," but Anderson continued to be aggressive and threatening towards Lahay, again threatening to "beat [Lahay's] a[**,]" making some movement toward the back of the counter, and inviting him to "come outside." Tr. Vol. II pp. 141, 142. Lahay called "91-1[,]" and Anderson left the store. Tr. Vol. II p. 142. Lahay followed Anderson outside, asking him to remain and provide police with identification information for a trespass complaint. Anderson pulled out a handgun and fired multiple shots at Lahay.
[¶4] During Lahay's encounter with Anderson, Lahay's mother, Lisa Mynatt, had been waiting in the market's parking lot to give one of Lahay's staff members a ride home. Lahay's son, X.A.L., was also in Mynatt's vehicle at the time. Mynatt had "made eye contact with" Anderson "[w]hen he was coming and going into the store." Tr. Vol. II pp. 165, 164. After Anderson had exited the market for the second time, Mynatt heard gunshots, at which time she instructed X.A.L. to "get the F down." Tr. Vol. II p. 165. "[T]wo bullets" struck Mynatt's vehicle with one going "through the bumper" and the other striking the metal on the passenger side "by the window" near where X.A.L. had been sitting. Tr. Vol. II p. 167.
[¶5] Anderson fled the scene. Responding officers located Anderson, who appeared to have changed clothing after leaving the market, and arrested him. The officers subsequently located clothes matching the description of what Anderson had been wearing in a nearby garage. Officers also recovered a cellular telephone, Anderson's identification, "a fairly large amount of money[,]" and a loaded 9-millimeter Taurus handgun with an extended magazine that was missing three rounds. Tr. Vol. II p. 200.
[¶6] Officers recovered one spent 9-millimeter shell casing from the scene of the shooting. Subsequent testing revealed that the casing had been fired by the firearm that had been found in the garage. DNA profiles that were "at least one trillion times more likely to have originated from" Anderson and two unknown individuals were recovered from the firearm, providing "very strong support for the proposition that" Anderson's DNA was included on the weapon. Tr. Vol. III p. 34.
[¶7] On May 10, 2023, Anderson was charged with Level 1 felony attempted murder, three counts of Level 3 felony attempted aggravated battery, Level 5 felony intimidation, Level 5 felony criminal recklessness, Level 5 felony attempted battery by means of a deadly weapon, Level 6 felony criminal recklessness, Level 6 felony pointing a firearm, Level 6 felony counterfeiting, and Class B misdemeanor criminal mischief. Following trial, a jury found Anderson not guilty of the counterfeiting charge and guilty of each of the other charged offenses. The State had also charged Anderson with Level 5 felony unlawful carrying of a handgun with a prior conviction and alleged that he was a habitual offender. Following a bench trial, the trial court found Anderson guilty of the unlawful-carrying-of-a-handgun charge and that he was a habitual offender.
[¶8] At sentencing, the trial court "merged" the following counts with the attempted-murder count: intimidation, criminal recklessness committed with a deadly weapon, battery by means of a deadly weapon, pointing a firearm, and one count of attempted aggravated battery. Tr. Vol. III p. 123. The trial court sentenced Anderson to a thirty-five-year sentence for attempted murder, enhanced by six years by virtue of his status as a habitual offender; ten years for each count of attempted aggravated battery; five years for criminal recklessness, 180 days for criminal mischief, and five years for unlawful carrying of a handgun without a license. The trial court ordered that the attempted murder, attempted aggravated battery, and unlawful carrying of a handgun sentences would run consecutively and the criminal recklessness and criminal mischief sentences would run concurrently, for an aggregate sixty-six-year term of incarceration.
Discussion and Decision
[¶9] Anderson contends that the evidence is insufficient to sustain his attempted-murder and aggravated-battery convictions. He also contends that the trial court improperly imposed sentence enhancements for his status as a habitual offender and the progressive enhancement for his conviction for unlawfully carrying a handgun.
I. Sufficiency of the Evidence
[¶10] When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is
the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal brackets, citations, and quotations omitted). Stated differently, in reviewing the sufficiency of the evidence, "we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility" and "affirm the judgment unless no reasonable factfinder could find the defendant guilty." Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). A. Attempted Murder
[¶11] In order to convict Anderson of attempted murder, the State was required to prove beyond a reasonable doubt that Anderson, acting with the specific intent to kill Lahay, engaged in conduct that constituted a substantial step toward the commission of murder. Ind. Code §§ 35-42-1-1, 35-41-5-1; Davis v. State, 558 N.E.2d 811, 812 (Ind. 1990). "The requisite intent to commit murder may be inferred from the intentional use of a deadly weapon in a manner likely to cause death." Davis, 558 N.E.2d at 812. "Discharging a weapon in the direction of a victim is substantial evidence from which a jury could infer intent to kill." Leon v. State, 525 N.E.2d 331, 332 (Ind. 1988). Furthermore, "[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." Ind. Code § 35-41-5-1(a).
[¶12] Anderson does not deny that he committed an overt act of firing multiple shots toward Lahay. Rather, he claims the State failed to prove beyond a reasonable doubt that he intended to kill Lahay because his firearm was capable of holding thirty rounds and "had [he] intended to kill Lahay, he had twenty-seven additional opportunities at his disposal, which he did not use." Appellant's Brief p. 19. Additionally, he suggests that the first "two or three rounds in the gun could have been blanks, rubber bullets, or wad cutters" and this "would explain why there was no damage to the front of the business, and little, if any, damage to Lisa Mynatt's vehicle." Appellant's Br. p. 19.
[¶13] Prior to the shooting, Anderson had threatened Lahay and taunted him to go outside. Anderson had fired multiple shots in Lahay's direction. Anderson's claim of restraint is simply a request to reweigh the evidence, which we will not do. Kiplinger v. State, 922 N.E.2d 1261, 1266 (Ind. 2010). There is sufficient evidence from which the jury could have inferred that Anderson had intended to kill Lahay.
B. Attempted Aggravated Battery
[¶14] In order to convict Anderson of attempted aggravated battery, the State was required to prove that Anderson "knowingly or intentionally [attempted to inflict] injury on a person that creates a substantial risk of death[.]" Ind. Code § 35-42-2-1.5. "A person engages in conduct 'intentionally' if, when he engages in the conduct, it is his conscious objective to do so." Ind. Code § 35-41-2-2(a). "A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." Ind. Code § 35-41-2-2(b). Again, "[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." Ind. Code § 35-41-5-1(a). An attempt to commit a crime is the same level felony or misdemeanor as the crime attempted. Ind. Code § 35-41-5-1(a).
[¶15] Anderson argues that the evidence is insufficient to prove that he acted with the requisite intent, i.e., that he acted knowingly or intentionally. Specifically, Anderson argues that Mynatt's and X.A.L.'s presence in the vehicle was "[u]nknown to" him. Appellant's Br. p. 23. Mynatt testified, however, that she and Anderson had made eye contact when he walked by her vehicle before the shooting began. Surveillance video from outside the store demonstrates that Anderson had walked past Mynatt's vehicle numerous times before the shooting occurred. In addition, the windows on Mynatt's vehicle did not appear to be tinted such that Anderson would have been unable to see in the vehicle. It was daylight and the weather was clear at the time. We conclude that the evidence supports the reasonable inference that Anderson had seen both Mynatt and X.A.L. in the vehicle prior to the shooting. Given that Mynatt's vehicle was positioned between Anderson and Lahay at the time of the shooting, the evidence supports the inference that Anderson was "aware of a high probability" that he was shooting in the direction of Mynatt and X.A.L., even if he was aiming at Lahay. See Ind. Code § 35-41-2-2(b). Anderson's argument regarding the sufficiency of the evidence to prove intent is nothing more than a request to reweigh the evidence, which again, we will not do. See Kiplinger, 922 N.E.2d at 1266.
Anderson acknowledges that his conduct "may well have been reckless[,]" but argues that "there is simply no evidence to demonstrate" that he acted knowingly or intentionally with regard to Mynatt and X.A.L. Appellant's Br. p. 25. However, as is outlined in the body of this decision, the evidence is such that the jury could reasonably infer that Anderson had not merely acted recklessly but rather had acted with the requisite intent, i.e., knowingly, for the attempted-aggravated-battery charges. Further, because we conclude that the jury reasonably inferred that Anderson had acted "knowingly" with regard to Mynatt and X.A.L., we need not address Anderson's transferred-intent argument.
[¶16] Anderson also argues that the evidence is insufficient to prove that his actions created a substantial risk of death to Mynatt and X.A.L. In making this argument, Anderson points to the fact that neither Mynatt nor X.A.L. were actually injured as a result of his actions. In support, Anderson points to Alexander v. State, 13 N.E.3d 917, 922 (Ind.Ct.App. 2014), in which a panel of this court concluded that the evidence was insufficient to support the defendant's aggravated-battery conviction because "the State did not present sufficient evidence to prove that Little's injury[-described as a graze wound- ]created a substantial risk of death."
[¶17] Anderson's reliance on Alexander, however, is misplaced because Anderson is charged with an attempted aggravated battery, not a completed aggravated battery. In this case, the State was required to prove that Anderson had, "acting with the culpability required for commission of the crime, ... engage[d] in conduct that constitute[d] a substantial step toward commission of the crime." Ind. Code § 35-41-5-1(a). We agree with the State that "[t]he act of shooting in the victims' direction constituted a substantial step toward inflicting an injury that created a substantial risk of death even if this risk did not materialize." Appellee's Br. p. 12. Anderson's challenge to the sufficiency of the evidence to prove that his actions created a substantial risk of death to Mynatt and X.A.L. amounts to nothing more than a request to reweigh the evidence, which again, we will not do. See Kiplinger, 922 N.E.2d at 1266.
II. Sentencing Issue - Multiple Enhancements Based on a Single Prior Conviction
[¶18] Anderson contends, and the State concedes, that the trial court erred in imposing sentencing enhancements. One who violates Indiana Code Section 35-47-2-1.5, Unlawful Carrying of a Handgun, commits a Class A misdemeanor. The offense is elevated to a Level 5 felony if the person has a prior felony conviction within the preceding fifteen years. Ind. Code § 35-47-2-1.5(b). In elevating Anderson's offense to a Level 5 felony, the trial court relied upon an Illinois felony conviction and this same felony was also used to support Anderson's habitual offender adjudication. Anderson contends this is error, and the State agrees. See Mills v. State, 868 N.E.2d 446, 452 (Ind. 2007) (observing that "a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a 'serious violent felon.'").
[¶19] The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings.
Foley, J., concurs. Bailey, J. concurs in part and dissents in part with opinion.
Bailey, Judge concurs in part and dissents in part with opinion.
[¶20] I agree with my colleagues' disposition of the issues presented in this case, with the exception of the challenge to the sufficiency of the evidence to support the two convictions for Attempted Aggravated Battery. I respectfully dissent from the affirmation of those convictions.
[¶21] There is no dispute that Anderson engaged in criminal conduct. Yet it is perplexing that he received an aggregate sixty-six-year sentence - something in excess of the advisory sentence for murder - when a total of four shots were fired, none striking or grazing a person. One must wonder if the State was over zealous in the charges and accordingly fell short of proof beyond a reasonable doubt upon each and every element of each and every charge. It is a fundamental principle that the State must prove every element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068 (1970).
Ind. Code § 35-50-2-3(a) provides that a person who commits murder shall be imprisoned for a fixed term of between forty-five and sixty-five years, with the advisory being fifty-five years.
[¶22] Lahay testified that Anderson fired three shots "at me" while his mother and child were "in the vicinity." (Tr. Vol. II, pg. 150.) At least one bullet struck Mynatt's vehicle. Anderson admits that his conduct of discharging a firearm may have been reckless as to Mynatt and X.A.L. but contends that insufficient evidence supports his convictions for the Attempted Aggravated Battery upon them. The culpability for commission of intentional conduct differs from that of the culpability for recklessness and we cannot simply conflate the degrees of culpability to preserve convictions.
[¶23] To support a conviction for Aggravated Battery, it must be established that the defendant acted either "knowingly" or "intentionally" when inflicting an injury:
A person who knowingly or intentionally inflicts injury on a person that creates a substantial risk of death or causes:
(1) serious permanent disfigurement;
(2) protracted loss or impairment of the function of a bodily member or organ; or
(3) the loss of a fetus; commits aggravated battery, a Level 3 felony.I. C. § 35-42-2-1.5. "Both murder and aggravated battery ... require proof of mens rea relative to a particular harmful outcome: a knowing or intentional attempted killing and a knowing or intentional infliction of injury causing a substantial risk of death, respectively." Demby v. State, 203 N.E.3d 1035, 1044 (Ind.Ct.App. 2021), trans. denied.
[¶24] "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 1(a). Indiana Code Section 35-41-2-2, the culpability statute, provides in relevant part:
(a) A person engages in conduct "intentionally" if, when he engages in the conduct, it is his conscious objective to do so.
(b) A person engages in conduct "knowingly" if, when he engages in the conduct, he is aware of a high probability that he is doing so.
(c) A person engages in conduct "recklessly" if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.
[¶25] Here, there is evidence that Anderson made eye contact with Mynatt as he walked into the store approximately eight minutes before the shooting. There is no testimony that Anderson was aware of the presence of X.A.L. at any time, nor that Anderson looked toward the vehicle and saw that Mynatt was still inside as Anderson exited the store. The videotape does not depict Anderson looking into the vehicle before he crossed the street, the location from which he fired shots. One can only speculate as to his awareness of the occupancy. Speculation is not proof beyond a reasonable doubt of an intentional or knowing mens rea. The evidence falls short of establishing Anderson's intent to cause harm to either Mynatt or X.A.L.
[¶26] That said, a factfinder could reasonably conclude that Anderson - a patron of the store who had seen at least one other patron earlier - acted with plain, conscious, and unjustifiable disregard of harm that might result to patrons when he fired shots. But there is no evidence that Anderson - in shooting "at" Lahay - knowingly or intentionally attempted to inflict an injury causing a substantial risk of death on either Mynatt or X.A.L.
[¶27] An "included offense," as defined by the General Assembly, encompasses an offense that:
differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission. I.C. § 35-31.5-2-168(3).
[¶28] The State could have drafted charges such that recklessness was an included offense.
By proper drafting, [the State] can preserve the option to seek conviction for the lesser offense, which, if charged within the body of the information, serves the due process guarantee of notice to [a] defendant.... By the same token, the state through its drafting can foreclose as to the defendant, the tactical opportunity to seek a conviction for a lesser offense. The point is that absolute discretion rests in the state to determine the crime(s) with which a defendant will be charged.
[¶29] Jones v. State, 438 N.E.2d 972 (Ind. 1982) (internal citations omitted.) Here, the State charged that the act Anderson committed with respect to X.A.L. and Mynatt was to "point and discharge a firearm to inflict injury on [X.A.L. And Mynatt] which created a substantial risk of death." (App. Vol. II, pgs. 22-23.) (emphasis added.) The State failed to prove Anderson's intentional conduct against X.A.L. and Mynatt and failed to make allegations that factually included recklessness as to those persons. For those reasons, I dissent from the affirmation of the two convictions for Attempted Aggravated Battery.