Allen v. State
| Decision Date | 24 July 1991 |
| Docket Number | No. 49S00-8807-CR-00619,49S00-8807-CR-00619 |
| Citation | 575 N.E.2d 615 |
| Parties | Christopher ALLEN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Aaron E. Haith, Choate Visher & Haith, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Christopher Allen was tried before a jury and convicted of attempted murder, a class A felony, Ind.Code Secs. 35-41-5-1, 35-42-1-1 (West 1986), and attempted robbery, a class B felony, Ind.Code Secs. 35-41-5-1, 35-42-5-1 (West 1986). The trial court sentenced him to thirty years for attempted murder and twenty years for attempted robbery, ordering the sentences served consecutively. We affirm the convictions but correct the sentence.
The evidence favorable to the jury's verdict showed that late on the evening of November 8, 1985, Johnny Wilson and his girlfriend Cheryl Wilhite were driving through a neighborhood in Indianapolis looking for the opportunity to buy marijuana. Wilson saw two men standing near 21st Street and College Avenue. Wilson and the men exchanged signals indicating the possibility of a marijuana sale, and Wilson pulled the car over.
One of the men, later identified as appellant Christopher Allen, asked wilson whether he wanted a "nickel" or a "dime," a request to know the amount of marijuana Wilson wanted to buy. Wilson responded that he wanted a "nickel." Allen made two trips to a nearby house while the other man, later identified as Kerry Samuel Huff, remained near Wilson's automobile. After returning from the house each time, Allen again asked Wilson how much marijuana he wanted. Finally, Allen pulled out a gun, put it to Wilson's head, and said, "here's your nickel." Allen demanded that Wilson "put your hands up, turn the car off and you get out of the car." Instead, Wilson pressed down on the accelerator and sped off. Allen fired three shots in the direction of Wilson's car; two of these entered through rear windows of the vehicle but did not hit the occupants.
Allen contends that the evidence was insufficient to support the verdict of the jury. In reviewing such claims, we neither weigh the evidence nor judge the credibility of the witnesses. We consider only that evidence favorable to the jury's verdict, together with all reasonable inferences that can be drawn from it. If there is substantial evidence of probative value to support the conclusion of the jury, we will affirm their determination. Alfaro v. State (1985), Ind., 478 N.E.2d 670.
Allen's central contention is that there was inadequate proof that he was the perpetrator of the crimes. He notes that Huff testified that Allen was not the perpetrator. He also cites the fact that Cheryl Wilhite identified someone else during a line-up. The jury chose to believe Wilson, who identified Allen in a photographic array, during a line-up, and in court. Wilson spoke with Allen four or five times at close range during the attempted sale and asserted at trial that he could see Allen clearly during the transaction. The jury was entitled to credit this testimony.
Allen also contends that firing shots at the car did not constitute sufficient evidence of an attempt to murder. The intent to commit murder, however, may be inferred from the deliberate use of a deadly weapon in a manner reasonably likely to cause death or great bodily harm. Spivey v. State (1982), Ind., 436 N.E.2d 61. Allen managed to place two shots through the windows of a speeding car late at night. This was serious shooting, and the jury was entitled to conclude that this was evidence of intent to kill.
Allen asserts that the trial court erred by failing to instruct the jury properly on the elements of attempted murder. He sees fundamental error in this instruction about the elements of attempted murder:
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