Opinion
23A-CR-2493
06-19-2024
Mark Wilburn, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Riley L. Parr Lebanon, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kelly A. Loy Assistant Section Chief Amanda Martin-Nelson Certified Legal Intern 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Boone Circuit Court The Honorable Lori N. Schein, Judge Trial Court Cause No. 06C01-2002-F1-403
ATTORNEY FOR APPELLANT Riley L. Parr Lebanon, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kelly A. Loy Assistant Section Chief Amanda Martin-Nelson Certified Legal Intern Indianapolis, Indiana
Vaidik and Foley Judges concur.
MEMORANDUM DECISION
Weissmann, Judge.
[¶1] Mark Wilburn appeals his conviction for the attempted murder of his former son-in-law, Michael Maxwell. After threatening to "get" Michael with a "forty," Wilburn shot Michael at close range with a .40 caliber handgun and then attempted to shoot Michael again as he lay defenseless on the ground. Wilburn later marveled that Michael had not died and asked a friend to "finish him off." Wilburn's only argument is that the State failed to prove beyond a reasonable doubt that he had specific intent to kill Michael. We affirm.
Facts
[¶2] At a morning meeting with child welfare authorities, Michael and his ex-wife Brittany Maxwell agreed that Michael should have custody of their three children. Michael told Brittany that he did not want her father-Wilburn-to be around the children. Brittany agreed Wilburn would not be present when Michael picked up the children from Brittany's home that evening. Later that day, Brittany told Wilburn that Michael did not want him around the children. Wilburn then had a conversation about Michael's wishes with a different relative, during which Wilburn stated that he had a "forty" and was going to "get 'em." Tr. Vol. II, pp. 227-28.
[¶3] When Michael arrived at Brittany's home that evening, Wilburn was present and loading a .40 caliber Smith &Wesson handgun in front of one of Michael and Brittany's children. As Brittany and her mother were helping the children into the passenger side of Michael's truck, Wilburn walked up behind Brittany with the gun. One of the children yelled, "[D]ad gun, dad gun." Id. at 241.
[¶4] Michael quickly turned, saw the gun, and swatted at it. The gun fired. Michael was shot in the left collar bone and collapsed backward onto the pavement. Wilburn then pointed the gun at an incapacitated Michael and said to him, "You shoulda kept your mouth shut[,] you little son of a b***h." Tr. Vol. II, p. 243. Wilburn pulled the trigger again, but the gun misfired. Michael ran to a neighbor's home and yelled for someone to call 911 as he collapsed on the porch. A friend helped Michael into his truck, and they drove to the hospital.
[¶5] Meanwhile, Wilburn drove to the home of his friend, Greg Bannon, and gave the .40 caliber handgun to Bannon's son, who immediately called Bannon. When Bannon arrived home shortly thereafter, Wilburn told Bannon that he had shot Michael "four times" and could not believe that "son of a b***h" had not died. Tr. Vol. III, p. 137. Wilburn also asked Bannon whether he would go to the hospital and "finish [Michael] off" with unused bullets that Wilburn had placed by the side of a building. Id. at 137-141. Bannon declined.
[¶6] Before leaving Bannon's home, Wilburn threw the shirt he was wearing into a wood burning stove. Wilburn and his wife drove to Alabama, where Wilburn later was arrested. Michael underwent surgery and remained hospitalized for 10 days for what his surgeon described as a life-threatening gunshot wound.
[¶7] While jailed, Wilburn told his nephew in a recorded telephone call, "[H]e wasn't saying nothing right after it happened . . . [Now h]e's crying like a little b***h." State's Exhibit 35, 00:35-00:47. During the same conversation, Wilburn stated, "[I]f he wouldn't have ran ran (sic) his mouth, he would never end up like, like he did." Id., 01:58-02:06.
[¶8] The State charged Wilburn with Level 1 felony attempted murder, Level 3 felony aggravated battery, Level 5 felony battery by means of a deadly weapon, and two counts of Level 6 felony criminal recklessness committed with a deadly weapon. After a jury trial, Wilburn was found guilty of all counts. The trial court ultimately entered judgment of conviction only on the attempted murder and criminal recklessness counts and sentenced Wilburn to a total of 37 years imprisonment. Wilburn appeals only his attempted murder conviction.
Discussion and Decision
[¶9] Wilburn contends the record shows his actions were "stupid, dangerous, and even criminal" but did not reflect his intent to kill Michael. Appellant's Br., p. 10. We disagree, finding the evidence of Wilburn's intent sufficient to support his attempted murder conviction.
[¶10] In reviewing the sufficiency of the evidence supporting a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016). Without assessing credibility or reweighing evidence, we reverse when no reasonable factfinder could find all elements of the crime proven beyond a reasonable doubt. Craft v. State, 187 N.E.3d 340, 345 (Ind.Ct.App. 2022).
[¶11] Attempted murder requires proof that the defendant, when acting with the specific intent to kill, engaged in conduct that was a substantial step toward such killing. Spradlin v. State, 569 N.E.2d 948, 950-51 (Ind. 1991); Ind. Code § 35-42-1-1 (murder statute); Ind. Code 35-41-5-1(a) (attempt statute). "Intent is a mental function and, absent a confession, usually must be proved by circumstantial evidence." Merriweather v. State, 128 N.E.3d 503, 515 (Ind.Ct.App. 2019). For instance, intent to kill may be inferred from the nature of the attack and the circumstances of the crime. Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002).
[¶12] Here, the State introduced evidence that Wilburn shot Michael in retaliation for Michael's statements about keeping Wilburn away from Michael and Brittany's children. The evidence of Wilburn's incriminating statements, both before and after the shooting, suggested Wilburn had intended to kill Michael and was disappointed that his efforts failed. Testimony showed that Wilburn even tried to recruit someone else to finish what Wilburn started: a fatal shooting of Michael.
[¶13] And most notably, the State introduced evidence indicating Wilburn approached Michael from behind while holding a gun and that Michael was shot after swatting the gun. Wilburn then pointed and attempted to fire the gun at Michael, who lay seriously wounded on the ground. Intent to kill may be interred from the use of a deadly weapon in a manner likely to cause death or great bodily injury. Schuler v. State, 112 N.E.3d 180, 188 (Ind. 2018). Moreover, "discharging a weapon in the direction of a victim is substantial evidence from which the jury could infer intent to kill." Corbin v. State, 840 N.E.2d 424, 429 (Ind.Ct.App. 2006).
[¶14] Despite this considerable evidence of Wilburn's intent to kill Michael, Wilburn compares his case to Kiefer, in which our Supreme Court reversed the defendant's attempted murder conviction based on inadequate evidence of his intent to kill. 761 N.E.2d at 806. But Wilburn's reliance on Kiefer is unavailing.
[¶15] Kiefer, while target shooting at his home, had fired in the direction of a 14-year-old boy walking on a roadway about 30 feet away. Id. at 803. The boy-whom Keifer did not know-was not hit and did not even realize until later that a shotgun had been fired in his direction. Id. Kiefer's statements and actions after the shot reflected his intent to frighten, rather than kill, the boy. Id. at 804, 806. In addition, the evidence as to whether Kiefer, an accomplished marksman, had shot at the boy or a nearby bush was conflicting. Id. at 806. The Kiefer Court concluded:
These circumstances lead us to conclude that there was insufficient evidence to convict Kiefer of attempted murder. Kiefer's act was stupid, dangerous, and even criminal, but based on the record, it did not rise to the level of attempted murder, which was the only crime charged.Id.
[¶16] The evidence of Wilburn's intent was far more conclusive. Wilburn's statements showed he planned to harm Michael with a .40 caliber gun. Wilburn later aimed a .40 caliber handgun at Michael at short range and pulled the trigger at least twice, although one shot misfired. When that did not kill Michael, Wilburn asked someone else to finish him off. Wilburn's motive in attempting to kill Michael was clear from the evidence and Wilburn's own statements.
[¶17] The State proved beyond a reasonable doubt Wilburn's intent to kill Michael. Accordingly, we affirm Wilburn's conviction for attempted murder.
[¶18] Vaidik, J., and Foley, J., concur.