Opinion
23A-CR-3084
06-27-2024
Ian Steven Austin, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Mark F. James Mark James Legal, LLC South Bend, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 St. Joseph Superior Court The Honorable Jeffrey L. Sanford, Judge Trial Court Cause Nos. 71D03-2210-F1-10 71D03-2111-F6-1050
ATTORNEY FOR APPELLANT Mark F. James Mark James Legal, LLC South Bend, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana.
MEMORANDUM DECISION
MATHIAS, JUDGE.
[¶1] Ian Austin appeals his Level 1 felony attempted murder conviction and argues that the State failed to prove that he had the specific intent to commit attempted murder.
[¶2] We affirm.
Facts and Procedural History
[¶3] On September 29, 2022, at approximately 9:20 p.m., Indiana State Excise Police Officer Joseph Formato was performing surveillance on a convenience store in South Bend. Formato believed that the store was selling marijuana and vape products to minors. Formato was in his unmarked vehicle in the store's parking lot. He was wearing his department-issued uniform, which included a vest that says "police" in large white block letters with his badge attached to it. Ex. Vol., p. 8.
[¶4] Formato observed an individual, later identified as Austin, park his vehicle in a nearby alley, which was not a designated parking area, and enter the store. Austin exited the store approximately thirty seconds later and returned to his vehicle. Austin then drove away from the store, and Officer Formato followed him.
[¶5] Officer Formato decided to initiate a traffic stop of Austin's vehicle after Austin failed to come to a complete stop at a stop sign. Tr. pp. 33-34. Before the officer could stop him, Austin traveled a short distance from the stop sign and then stopped his vehicle in the roadway. Id. at 35. The officer quickly activated his rear light bar and rear-side lights while Austin immediately exited his vehicle. Austin then shot at Officer Formato's vehicle eighteen times, and the officer returned fire through his windshield with his weapon. Officer Formato leaned down and toward the passenger side of the vehicle while he was shooting to use the dashboard and engine block to shield himself from the gunshots.
The officer was unable to activate his remaining lights or put his vehicle in park before Austin started shooting at him.
[¶6] After the officer emptied his weapon, he saw Austin run away from his vehicle. The officer exited his vehicle, hid behind a tree and radioed for help. Austin reappeared holding his hands up in the air. Id. at 22. Austin then got into his vehicle and drove away. Id. Officer Formato's vehicle was stuck by several bullets and sustained damage to the lower passenger side of the windshield, the lower, front passenger side, and the passenger front and rear tires. Id. at 65-72; Ex. Vol., pp. 67-98.
[¶7] On October 3, the State charged Austin with Level 1 felony attempted murder, Level 5 felony attempted battery by means of a deadly weapon, and Level 5 felony criminal recklessness. The State also filed a firearm enhancement. Austin waived his right to a jury trial, and the trial court held a bench trial on October 6, 2023. At trial, Austin testified that he did not know the person driving the vehicle behind him was a police officer and fired the shots to scare the person off. Tr. pp. 92, 95, 99. He argued that he did not act with specific intent to kill Officer Formato. Tr. p. 103.
[¶8] The trial court issued a written order on October 24 finding Austin guilty of Level 1 felony attempted murder but dismissing the two Level 5 felony charges.
The court concluded that the State had proved that Austin had a specific intent to kill Officer Formato because Austin deliberately fired his gun in the direction of the officer. Appellant's App. pp. 24-25.
[¶9] The trial court held Austin's sentencing hearing on November 28. The trial court imposed the minimum twenty-year-sentence for his Level 1 felony attempted murder conviction and added five years for the firearm enhancement. Therefore, Austin's aggregate sentence is twenty-five years.
[¶10] Austin now appeals.
Discussion and Decision
[¶11] Austin argues that the State failed to prove that he had the specific intent to kill. Our standard of review is well settled.
When an appeal raises "a sufficiency of evidence challenge, we do not reweigh the evidence or judge the credibility of the witnesses ...." We consider only the probative evidence and the reasonable inferences that support the [judgment]. "We will affirm 'if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.'"Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (quoting Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011)).
[¶12] To convict Austin of attempted murder, the State had to prove beyond a reasonable doubt that Austin, acting with the specific intent to kill, engaged in conduct that constituted a substantial step toward the commission of murder. See Ind. Code § 35-42-1-1(1); Ind. Code § 35-41-5-1(a); Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015) (explaining that attempted murder is unique in that it requires the State to prove "the defendant's specific intent to kill"). "Intent to kill may be inferred from the nature of the attack and the circumstances surrounding the crime." Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002). "Additionally, the trier of fact may infer intent to kill from the use of a deadly weapon in a manner likely to cause death or great bodily harm." Id. Our Supreme Court has held that discharging a weapon in the direction of a victim is substantial evidence from which the fact-finder could infer intent to kill. Powell v. State, 151 N.E.3d 256, 270 (Ind. 2020); Simmons v. State, 999 N.E.2d 1005, 1008, 1010-11 (Ind.Ct.App. 2013).
[¶13] In his brief, Austin concedes that his actions were reckless but argues that there was "no evidence Austin pointed his weapon at the officer when he fired the weapon. All the evidence indicates Austin fired his weapon at the low, front passenger side of the vehicle." Appellant's Br. at 8. Therefore, Austin claims that there was no evidence that he had the specific intent to kill. We do not agree.
[¶14] Austin stopped his vehicle in the roadway, exited the vehicle while armed with a handgun, and pointed that gun at Officer Formato's vehicle. He immediately fired eighteen shots at the front of the vehicle. Several bullets struck the vehicle, including one that struck the lower windshield within inches of the center of the officer's car. Ex. Vol., pp. 70-72. The trial court reasonably found that Austin had the specific intent to kill when he pointed his handgun at the front of the officer's vehicle and fired eighteen shots. Moreover, it was within the province of the trial court to consider the credibility of Austin's claims that he was frightened and merely trying to scare the driver of the vehicle. Austin's argument is merely a request to reweigh the evidence and credibility of the witnesses on appeal, which we will not do. See Phipps, 90 N.E.3d at 1195.
[¶15] For all of these reasons, we affirm Austin's Level 1 felony attempted murder conviction.
In his Appellant's brief, Austin raised a sentencing claim assuming our court's agreement with his claim of insufficient evidence on the attempted murder conviction. But he concedes that his minimum sentence for attempted murder "is reasonable if the Court does not reverse the attempted murder conviction." Appellant's Br. at 8.
[¶16] Affirmed.
Altice, C.J., and Bailey, J., concur.