Beanblossom v. State, 10S00-8710-CR-950

• Citation: 530 N.E.2d 741
• Decision Date: 02 December 1988
• Docket Number: No. 10S00-8710-CR-950,10S00-8710-CR-950
• Parties: Von BEANBLOSSOM, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 741

530 N.E.2d 741

Von BEANBLOSSOM, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 10S00-8710-CR-950.

Supreme Court of Indiana.

Dec. 2, 1988.

Michael J. McDaniel, New Albany, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Attempted Murder, a Class A felony, for which he received thirty (30) years, enhanced by ten (10) years for aggravating circumstances. He was also found guilty of Armed Robbery, a Class A felony, for which he received thirty (30) years, enhanced by ten (10) years by reason of aggravating circumstances, the sentences to run concurrently.

The facts are: On January 5, 1986, at approximately 5:15 a.m., David Gatliff was preparing to end his late-night shift at the Hamburg Shell Food Mart in Clark County, Indiana. He was counting his night's receipts when appellant entered the building. Gatliff continued counting the money as he and appellant talked. At the time, Gatliff could not remember appellant's name but he recognized him as a person who had lived in the same trailer court as Gatliff.

After they talked for a few minutes, appellant stated he was going to his car to get his coat. When he came back, Gatliff had placed the money in an envelope in his coat pocket. As he turned from appellant and started to enter a small office in the building, he felt a sharp pain in the back of his head. He became dizzy and fell to his hands and knees. As his mind cleared, he looked back at appellant and saw that he had a gun pointed at Gatliff's head. He turned his head and as he did he heard the gun fire and soon felt blood coming out of his ear.

The .22 caliber bullet had struck the hearing aid in Gatliff's left ear and shattered both the hearing aid and the bullet. Fragments from the bullet and the hearing aid struck Gatliff in the ear and the head. At the time he was shot, he was wearing hearing aids in both ears. Gatliff testified that he had had a hearing problem since he was a small child and that he wore hearing aids in both ears. He further testified that after appellant fired the shot that injured him he heard appellant click the gun three more times; the gun, however, did not fire. Gatliff played dead to avoid further injury. As appellant bent over Gatliff to remove the envelope containing the money from Gatliff's pocket, he stated, "I hope you're dead."

Appellant claims there is insufficient evidence to sustain the conviction of attempted murder due to a failure of proof of his intent to kill. This Court will not weigh conflicting evidence. Taylor v. State (1987), Ind., 514 N.E.2d 290. In the case at bar, appellant testified that he brought the gun into the service station with the general intent to rob the victim by scaring him with the gun, and when he started to cock the gun, it went off accidentally. This evidence was presented to the jury along with the evidence above recited and it was their prerogative to disbelieve appellant's version of the episode.

When one embarks upon an armed robbery and points the gun at his victim, he can hardly expect a jury to believe that the gun fired accidentally. This is especially true in the case at bar where appellant pulled the trigger of the gun three more times and then stated that he hoped the victim was dead. The intent to commit murder may be inferred from the intentional use of a deadly weapon in a manner likely to cause death. The act of...