Opinion
23A-CR-2444
09-10-2024
Travis A. Lang, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Ann M. Sutton Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Mark D. Stoner, Judge Trial Court Cause No. 49D32-2110-MR-31535
ATTORNEYS FOR APPELLANT
Ann M. Sutton Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
FOLEY, JUDGE
[¶1] Travis A. Lang ("Lang") was convicted after a jury trial of murder, a felony; attempted murder, a Level 1 felony; two counts of attempted robbery, each as a Level 5 felony; and carrying a handgun without a license as a Class A misdemeanor. The trial court sentenced him to an aggregate term of ninety-six years executed. On appeal, Lang raises the following restated issues for our review:
I.C. §§ 35-42-1-1(1), 35-41-5-1(a).
I.C. §§ 35-42-5-1(a), 35-41-5-1(a).
I.C. § 35-47-2-1.
I. Whether the trial court abused its discretion when it refused to give a lesser-included offense instruction on reckless homicide; and
II. Whether the State presented sufficient evidence to support his convictions for attempted robbery.
[¶2] We affirm.
Facts and Procedural History
[¶3] On October 1, 2021, Kaylee Sexton ("Sexton") wanted to purchase some Xanax and reached out to a drug dealer known to her as Kiki, who was later identified as Lang. Sexton reached out to Lang and arranged to meet him in Indianapolis to purchase the Xanax. Sexton agreed with Lang that if Xanax was not available, she would buy heroin instead. Sexton's friend Dylan McGinnis ("McGinnis") decided to accompany Sexton to Indianapolis because he did not want her to go alone. McGinnis allowed Sexton to drive his car, and he rode in the passenger seat.
[¶4] After Sexton arrived at the address provided by Lang, Lang entered the car and sat in the backseat. Lang directed Sexton to an apartment where he went inside to obtain the drugs. When Lang returned, he told Sexton that there was no Xanax but that he did get the heroin. Lang did not have a scale to weigh the heroin, so he had Sexton drive to a nearby gas station so that he could purchase one. Inside the gas station, Lang purchased a scale from the gas station clerk, who recognized him as a regular customer.
[¶5] Upon leaving the gas station, Sexton began driving Lang back toward the address where she originally picked him up from. After weighing the heroin, Lang gave it to Sexton, and Sexton handed him forty dollars. A dispute then arose over the payment amount because Lang demanded more money, insisting they had agreed on eighty dollars. A heated argument ensued, with McGinnis attempting to play peacemaker. Sexton became uncomfortable and ordered Lang to get out of the car. Lang refused, insisting Sexton continue driving him back. Sexton began recording audio of the interaction on her phone. Sexton slammed on her brakes and screamed very loudly for Lang to get out of the car. Lang leaned up into the front seat area and tried to grab Sexton's phone and wallet. Lang then pulled out a gun and threatened, "Bitch, give me my money or I'm gonna start squeezing this bitch." State's Ex. 186 at 3:54-3:58. McGinnis tried to defuse the situation and offered Lang the few dollars he had in his pocket. Sexton punched Lang in the neck with brass knuckles, and Lang exclaimed, "Bitch just hit me" before hitting Sexton in the head with his gun. Id. at 4:19.
[¶6] Seconds later, Lang exited the car and fired approximately nine shots in rapid succession into the passenger compartment of the car. The gunshots shattered the driver's and rear passenger's windows. McGinnis was struck twice in the back and once in the hand. One bullet struck his spinal column, went through two ribs, and pierced his lower left lung, and another nearly severed his aorta, causing massive blood loss. Sexton was hit twice in the leg. After the shots were fired, Sexton drove a short distance before stopping to call for help. She threw the heroin out of the car window before first responders arrived. McGinnis was pronounced dead at the scene, with the cause of death later determined to be gunshot wounds to the torso.
[¶7] Lang fled the scene but was later identified through phone records, Cash App account information associated with his phone number, and surveillance video from the gas station. Both Sexton and the gas station clerk identified Lang from photo arrays. Lang was arrested on October 18, 2021, after attempting to run from the police. While in jail awaiting trial, Lang made phone calls discussing attempts to eliminate Sexton and the gas station clerk as witnesses.
[¶8] On October 13, 2021, the State charged Lang with three counts of murder, one count of attempted murder, two counts of Level 2 felony attempted robbery, one count of Level 6 felony dealing a controlled substance, and one count of Class A misdemeanor carrying a handgun without a license. The State subsequently dismissed the dealing in a controlled substance charge and continued to jury trial on the remaining offenses. During the jury trial, Lang requested that the trial court give the jury an instruction on the lesser-included offenses of voluntary manslaughter and reckless homicide. When the trial court asked Lang to identify what evidence was presented to support recklessness, Lang only argued that the shots were fired into a vehicle and not directly into a person. While the trial court agreed to give the voluntary manslaughter instruction, it declined to give the lesser-included offense instruction for reckless homicide, finding that there was no evidence in the record that Lang acted recklessly.
[¶9] The jury found Lang guilty as charged on all counts. The trial court entered judgment of conviction for one count of murder, one count of Level 1 felony attempted murder, two counts of Level 5 felony attempted robbery, and one count of Class A misdemeanor carrying a handgun without a license. At sentencing, Lang was sentenced to sixty-two years for murder, a consecutive thirty-four years for attempted murder, and concurrent sentences of five years each for the attempted robbery convictions and one year for the handgun charge, resulting in an aggregate term of ninety-six years executed. Lang now appeals.
Discussion and Decision
I. Jury Instruction
[¶10] Lang argues that the trial court abused its discretion when it refused to give his tendered instruction on the lesser-included offense of reckless homicide. In determining whether to instruct a jury on a lesser-included offense, the trial court must first decide whether the lesser-included offense is either inherently or factually included within the crime charged by the charging information. Young v. State, 699 N.E.2d 252, 255 (Ind. 1998) (citing Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995)). If the lesser offense is inherently or factually included, the trial judge must determine whether there is a serious evidentiary dispute about the element or elements distinguishing the greater offense from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater. Wright, 658 N.E.2d at 566-67. In deciding if there is a serious evidentiary dispute, the court must look at the evidence presented in the case by both parties. Id. at 567. If this step is reached and answered in the affirmative, the trial court will be found to have committed reversible error by not giving the requested instruction. Young, 699 N.E.2d at 255.
[¶11] When the trial court has made a finding on the existence or lack of a serious evidentiary dispute, our standard of review is abuse of discretion. Miller v. State, 720 N.E.2d 696, 702 (Ind. 1999) (citing Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998)). However, where there is no such finding, the reviewing court makes the required determination de novo based on its own review of the evidence. Id. Here, Lang proffered a final instruction on reckless homicide as a lesser-included offense of his charged offense of murder. The trial court rejected Lang's argument finding that there was no serious evidentiary dispute. Therefore, the trial court did make a determination on the record as to the existence or lack of a serious evidentiary dispute, so we will review the trial court's decision for an abuse of discretion. See Miller, 720 N.E.2d at 702.
[¶12] Both parties acknowledge that reckless homicide is a lesser-included offense of murder, as the only element distinguishing murder and reckless homicide is the defendant's state of mind: reckless homicide occurs when the defendant "recklessly" kills another human being, and murder occurs when the killing is done "knowingly" or "intentionally." Compare Ind. Code § 35-42-1-5, with I.C. § 35-42-1-1(1). Reckless conduct is action taken in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct. I.C. § 35-41-2-2(c). A person engages in conduct "knowingly" if the person is aware of a "high probability" that he or she is doing so. I.C. § 35-41-2-2(b). Therefore, reckless homicide is an inherently included lesser offense of murder. Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (citing Davenport v. State, 749 N.E.2d 1144, 1150 (Ind. 2001)). The determinative issue here was whether the evidence created a serious evidentiary dispute concerning Lang's state of mind that would justify giving the requested instruction for reckless homicide.
We only discuss knowing behavior as the final instructions given to the jury only included "knowingly" in the elements that the jury was required to find in order to convict Lang of murder. Appellant's App. Vol. III p. 75.
[¶13] Based on the evidence in this case, we conclude that the trial court did not abuse its discretion in determining there was no serious evidentiary dispute about the element distinguishing the greater from the lesser offense. The evidence presented at trial revealed that Lang demanded additional money from Sexton for the drugs, and when she refused, he became angry, and an argument ensued that eventually turned violent. Lang reached for Sexton's phone and wallet, then pulled his gun and threatened, "give me my money or I'm gonna start squeezing this bitch." State's Ex. 186 at 3:54-3:58. Sexton then hit him in the neck with brass knuckles, and Lang responded by saying, "Bitch just hit me" and then struck Sexton in the head with his gun. Id. at 4:19. Within seconds, as Lang exited the car, he fired nine gunshots in rapid succession into the passenger compartment of the car where both Sexton and McGinnis were seated, shattering the driver's and rear passenger's windows. McGinnis was struck in his back with two bullets and struck in his hand by another bullet. Sexton was struck by two bullets in the leg.
[¶14] The knowing nature of his conduct of firing multiple gunshots from close range directly toward the victims was supported by the evidence of motive and of Lang's threats. He was angry at Sexton because she would not give him money, refused to continue driving, and had hit him. Thus, the evidence revealed that Lang had a motive to kill Sexton and McGinnis, and his conduct of shooting the gun towards the car where they were seated was simply carrying out his threat to do so only seconds prior. This motive evidence supported the conclusion that Lang was knowingly firing at his victims rather than merely firing a gun in their vicinity in plain, conscious, and unjustifiable disregard of harm that might result.
[¶15] In his argument that the trial court erred in refusing his instruction, Lang relies on Young, where our Supreme Court held that the trial court erred when it refused to give a jury instruction on reckless homicide as there was a serious evidentiary dispute about whether the defendant acted knowingly or recklessly when he fired the fatal shot. 699 N.E.2d at 257. There, the defendant drove by a group of people, including the victim, who were wrestling outside a house and fired multiple shots from his car, which was a distance of approximately twenty feet from the group. Id. at 254. He first fired twice before driving away and then returned to fire about four more times. Id. The victim was struck in the back of the head and later died from the gunshot wound. Id. at 255. The defendant was charged with murder and requested jury instructions on the lesser-included offenses of reckless homicide and involuntary manslaughter. Id. at 254. Evidence at trial revealed that there was no reason that the defendant had to be angry with the victim, and no witness testified that they thought the defendant was actually aiming his gun at any specific person. Id. at 256. A crime scene specialist testified that he was unable to say whether the recovered bullets were fired at random targets or specifically aimed. Id. The trial court refused the requested instructions, and on appeal, the Supreme Court reversed the conviction based on the refusal to give the reckless homicide instruction and remanded for a new trial. Id. at 257.
[¶16] Young is distinguishable from the present case. Young involved a drive-by shooting where the defendant fired into a crowd from a moving vehicle, with no clear prior dispute between him and the victim. He fired from about twenty feet away with no specific target and shouted general taunts at the crowd but had no clear motive. In contrast, here, the shooting stemmed from a drug deal gone wrong, occurring immediately after a direct interaction and dispute with Sexton over the payment of money. Lang fired nine shots in rapid succession from close range, directly into the car where both Sexton and McGinnis were seated. He had previously made explicit threats to shoot if not given money, which provided a clear motive related to the drug transaction dispute. Additionally, Lang hit both individuals in the car with multiple shots striking both driver and passenger areas, while Young hit one victim in a crowd, with other bullets hitting nearby structures. Therefore, the present case presented strong factual support for the conclusion that Lang was knowingly firing at his victims rather than merely firing a gun in their vicinity when he fired nine gunshots into the passenger compartment of the car, striking both Sexton and McGinnis. At the very least, the evidence supported the conclusion that Lang was aware of a high probability that the gunshots would strike the victims.
[¶17] Because there was no serious evidentiary dispute such that the jury could conclude that reckless homicide was committed and not murder, we conclude that the trial court did not abuse its discretion when it refused to give Lang's proffered instruction on reckless homicide.
II. Sufficiency of the Evidence
[¶18] Lang next argues that insufficient evidence was presented to support his convictions for Level 5 felony attempted robbery. When there is a challenge to the sufficiency of the evidence, "[w]e neither reweigh evidence nor judge witness credibility." Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016), cert. denied. Instead, we consider only that evidence most favorable to the judgment together with all reasonable inferences drawn therefrom. Id. "We will affirm the judgment if it is supported by substantial evidence of probative value even if there is some conflict in that evidence." Id. Further, "[w]e will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[¶19] To convict Lang of Level 5 felony attempted robbery, the State was required to prove that he took a substantial step toward knowingly or intentionally taking property from another by using or threatening the use of force. I.C. §§ 35-41-5-1(a), 35-42-5-1(a). The evidence most favorable to the verdict revealed that Lang angrily demanded money from Sexton and McGinnis, that he brandished a gun and threatened to start "squeezing this bitch" if they did not give him more money, and that he tried to grab Sexton's wallet from her possession. State's Ex. 189 at 3:54-3:58. This evidence established all of the essential elements of the offense of attempted robbery and was legally sufficient to support his convictions.
[¶20] Lang does not dispute that his actions constituted an attempt to take property by force or the threat of force. Instead, he contends that the evidence did not support his attempted robbery conviction because it did not prove that he attempted to take the property of another because he was merely demanding that Sexton give him money he believed she owed him for the drug transaction. This is just a request to reweigh the evidence. Although Lang claims that it was undisputed that the agreement between him and Sexton was that Sexton would pay eighty dollars for the heroin, Sexton testified at trial that she understood the transaction was forty dollars for a half-gram of heroin, which is what she believed she was purchasing and that the eighty dollars price was for a full gram. Tr. Vol. III p. 194. There was no evidence of the actual amount of heroin given to Sexton by Lang and whether it was more than a half-gram. A reasonable inference could be drawn from this evidence that Lang attempted to obtain money from Sexton by using or threatening the use of force. Thus, to the extent that a person could avoid a robbery conviction based on being owed more money in a drug transaction, Lang's claim fails because it is requesting us to reweigh the evidence presented at trial.
[¶21] Lang additionally argues that there was insufficient evidence to prove that he was attempting to rob McGinnis because Lang asserts there was no evidence that he asked McGinnis for anything or tried to take anything from McGinnis. However, the evidence established that, after the dispute over the payment of the money began, Lang pulled out a gun and demanded money that he believed was owed to him and threatened to "start squeezing this bitch" if he did not get more money. State's Ex. 186 at 3:54-3:58. At that point, McGinnis tried to defuse the situation and offered Lang the few dollars he had in his pocket. Therefore, Lang was brandishing a weapon in the small confines of a car in close proximity to both Sexton and McGinnis and threatening to start shooting if he did not receive more money. And in response, McGinnis was fearful enough that he tried to give Lang the few dollars he had. Although Lang argues otherwise, looking at the evidence in the light most favorable to the verdict, the jury could reasonably infer that Lang's actions established that he committed attempted robbery by taking a substantial step toward knowingly or intentionally taking property from McGinnis by using or threatening the use of force.
[¶22] Further, to the extent that Lang contends that the two counts of Level 5 felony attempted robbery were identical after the trial court reduced them from being Level 2 felonies, we disagree. The two counts were charged in pertinent part as follows: "Lang did knowingly or intentionally attempt to take [U.S.] Currency from Dylan K McGinnis and/or Kaylee Sexton, by using force or by threatening the use of force by demanding [U.S.] Currency from Dylan K McGinnis and/or Kaylee Sexton while armed with a handgun ...." Appellant's App. Vol. II p. 34. Therefore, the charges were such that the jury could find Lang guilty of both with each conviction having a separate victim, i.e., one conviction with Sexton as the victim of the attempted robbery and the other with McGinnis as the victim. Based on the above and looking to the evidence most favorable to the verdict, we conclude that sufficient evidence was presented to support Lang's convictions for two counts of Level 5 felony attempted robbery.
Conclusion
[¶23] We conclude that the trial court did not abuse its discretion in refusing Lang's tendered jury instruction for the lesser-included offense of reckless homicide, and sufficient evidence was presented to support Lang's convictions for two counts of Level 5 felony attempted robbery.
[¶24] Affirmed.
Vaidik, J., and Weissmann, J., concur.