Opinion
24A-CR-365
08-30-2024
Barry Atkinson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT TALISHA R. GRIFFIN CHRISTOPHER M. KUNZ MARION COUNTY PUBLIC DEFENDER AGENCY INDIANAPOLIS, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL J.T. WHITEHEAD 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable Cynthia L. Oetjen, Judge Trial Court Cause No. 49D30-2109-F1-30289
ATTORNEYS FOR APPELLANT TALISHA R. GRIFFIN CHRISTOPHER M. KUNZ MARION COUNTY PUBLIC DEFENDER AGENCY INDIANAPOLIS, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL J.T. WHITEHEAD DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Bailey, Judge
Case Summary
[¶1] Barry Atkinson ("Atkinson") appeals his conviction for Attempted Murder, a Level 1 felony, and challenges a procedural irregularity with respect to the sentences imposed for Attempted Murder and Aggravated Battery, as a Level 3 felony, as to one of his victims. We affirm the conviction for Attempted Murder but remand to the trial court with instructions to vacate the sentence for Aggravated Battery pertaining to the same victim.
I.C. § 35-42-2-1.5.
He does not challenge the conviction for Aggravated Battery as to a second victim.
Issues
[¶2] Atkinson presents two issues for review:
I. Whether the State presented sufficient evidence of his specific intent to kill, to support the conviction for Attempted Murder; and
II. Whether the sentencing order cured a double jeopardy violation.
Facts and Procedural History
[¶3] In September of 2021, Atkinson was living with his fiance, Erika Ditman ("Ditman"), and Ditman's children in an Indianapolis apartment. On September 21, Ditman left the residence with her best friend, Brionna Winfield ("Winfield"), to take their children to school, in keeping with their daily routine. While the children were in school, the women got groceries; when they returned to the apartment, they were in a hurry to get the groceries inside and pick up the children from school. Ditman asked for Atkinson's help in carrying the food. He refused, and an argument ensued.
[¶4] As she went back and forth between Winfield's van and her kitchen, carrying groceries, Ditman placed a call to her mother. Ditman was crying as she explained to her mother that she was planning to leave Atkinson. Winfield assisted with the groceries and noticed that Atkinson was "really angry" as he followed Ditman "back and forth to the house." (Tr. Vol. II, pg. 98.) At one point, Winfield observed Atkinson grab a necklace around Ditman's neck and try to seize her cellphone.
[¶5] The women returned to the van, with Atkinson in pursuit. Ditman and Atkinson continued to argue. When Atkinson swore "on my dead grandma," Ditman replied: "f--- your grandmother." (Id. at 123, 127.) Winfield heard Ditman say "so you gonna shoot me" before Atkinson opened fire. (Id. at 100.) Winfield tried to drive away, but she had been shot and could not control the van. Atkinson continued to fire into the vehicle before it crashed. He fired at least eight shots and then fled, cursing the women.
Eight shell casings from the same weapon were found at the scene. One bullet jacket was also recovered.
[¶6] Winfield had been struck by six bullets, three of which were lodged in her spine and could not be removed. She underwent surgery to have half of her intestines removed and was still unable to work years later. Ditman was struck by five bullets, which permanently paralyzed her and robbed her of her ability to walk.
[¶7] On September 30, 2021, the State charged Atkinson as follows: Count 1, Attempted Murder of Ditman; Count 2, Attempted Murder of Winfield; Count 3, Aggravated Battery of Ditman; and Count 4, Aggravated Battery of Winfield. On December 12, 2023, a jury acquitted Atkinson of Count 2 but found him guilty of the remaining charges. On January 18, 2024, the trial court imposed upon Atkinson an aggregate sentence of forty-eight years. Atkinson now appeals.
Discussion and Decision
Evidence of Specific Intent
[¶8] In order to convict Atkinson of Attempted Murder, the State was required to prove beyond a reasonable doubt that Atkinson, acting with the specific intent to kill Ditman, engaged in conduct that constituted a substantial step toward the commission of murder. I.C. §§ 35-42-1-1, 35-41-5-1; Davis v. State, 558 N.E.2d 811, 812 (Ind. 1990). Atkinson does not deny that he committed an overt act of shooting Ditman. Rather, he claims the State failed to prove beyond a reasonable doubt that he intended to kill Ditman when he shot and wounded her because "the shooting was a quick, emotionally charged, gut reaction" with only "seconds pass[ing] between the time the gun was drawn and fired." Appellant's Brief at 10.
[¶9] Our standard of review for sufficiency is clear: we will consider only the evidence most favorable to the verdict and the reasonable inferences to be drawn therefrom. Leonard v. State, 73 N.E.3d 155, 160 (Ind. 2017). We will affirm a conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id. We will neither reweigh the evidence nor reassess the credibility of witnesses. Id. 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 can infer intent to kill. Leon v. State, 525 N.E.2d 331, 332 (Ind. 1988).
[¶10] Prior to the shooting, Ditman perceived a threat from Atkinson, exclaiming: "so you gonna shoot me." (Tr. Vol. II, pg. 100.) Atkinson then shot Ditman at close range and continued to shoot until five bullets had struck Ditman. Atkinson's claim that the shooting happened instantaneously without his formation of an intent is simply a request to reweigh the evidence, and this we will not do. Kiplinger v. State, 922 N.E.2d 1261, 1266 (Ind. 2010). There is sufficient evidence from which the jury could infer that Atkinson intended to kill Ditman.
Merger of Convictions
[¶11] At the sentencing hearing, the trial court implicitly determined that Atkinson should not stand convicted of both Attempted Murder and Aggravated Battery with respect to Ditman, due to double jeopardy principles. That is, the trial court stated: "Count III will merge with Count I and would be vacated." (Tr. Vol. II, pg. 213.) Neither the State nor Atkinson objected to the substantive ruling nor noted the inconsistency in procedure. The written sentencing orders indicate that a merger of counts pertaining to Ditman was ordered.
[¶12] On appeal, Atkinson argues that "the court's remedy of merging Count 3 with Count 1 was insufficient to cure the double jeopardy violation." Appellant's Brief at 15. The State responds:
The conviction for aggravated battery against the same victim, Ditman, was a lesser included offense of the attempted murder against Ditman, such that convictions for both crimes violate double jeopardy.... The merger of those two offenses is insufficient to cure any double jeopardy violation presented by the two convictions.Appellee's Brief at 12 (citation omitted.)
[¶13] "Where a defendant is found guilty of both the greater offense and an included offense, [under circumstances that amount to a double jeopardy violation,] the proper procedure is to vacate the conviction for the included offense and to enter a judgment of conviction and sentence only upon the greater offense." O'Connor v. State, 234 N.E.3d 242, 247 (Ind.Ct.App. 2024). A double jeopardy violation cannot be remedied by the "practical effect" of concurrent sentences. Morrison v. State, 824 N.E.2d 734, 741-42 (Ind.Ct.App. 2005), trans. denied. Accordingly, we remand this cause to the trial court with an order to vacate Atkinson's conviction for the aggravated battery of Ditman.
Under Wadle v. State, 151 N.E.3d 227 (Ind. 2020), a three-part test is employed for claims of substantive double jeopardy, i.e., claims related to multiple convictions for the same offense in a single proceeding. First, the courts look to the statutory language to see if either statute under which a defendant was charged permits multiple punishments; if not, the courts proceed to the second step, which is to apply the included offense statute, Indiana Code Section 35-31.5-2-168. See A.W. v. State, 229 N.E.3d 1060, 1066 (Ind. 2024). If one of the two offenses is inherently or factually (as charged) included in the other offense, the final step of the Wadle analysis involves an examination of the underlying facts to determine whether the criminal actions were "so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction." 151 N.E.3d at 253.
Conclusion
[¶14] Sufficient evidence supports Atkinson's conviction for Attempted Murder. As such, we affirm that conviction. However, we remand to the trial court with instructions to vacate the conviction for the aggravated battery of Ditman.
Altice, C.J., and Mathias, J., concur.