Fisher v. State
| Decision Date | 26 July 1989 |
| Docket Number | No. 49S00-8703-CR-290,49S00-8703-CR-290 |
| Citation | 541 N.E.2d 520 |
| Parties | John L. FISHER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Stephen T. Owens, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.
A jury trial resulted in appellant's conviction of two counts of Battery, a Class C felony, for which he received two sentences of five (5) years each, and Murder, for which he received a sentence of fifty (50) years, the sentences to be served concurrently.
The facts are: At approximately midnight on June 2, 1984, Beverly Owens visited Red's Lounge in Indianapolis. Appellant sat down next to her and asked if she were married. Appellant told her his wife was out of town, and he wanted her to leave with him. He offered her one hundred dollars. She rebuffed him and began talking to another bar patron, Michael Gillespie.
While she and Gillespie danced, appellant stared at them, and she told Gillespie that appellant had been bothering her. They sat down and appellant continued to stare at Owens. Gillespie then approached appellant and asked him to stop bothering and staring at Owens. An argument ensued, and appellant hit Gillespie in the mouth with the butt of his gun and broke some of his teeth. Appellant moved toward the door and the bar owner, James Martin, grabbed appellant and pushed him against the door. At that time, Maxine Owens, another bar patron, interceded and attempted to push Martin away from appellant. Martin stepped back, and appellant fired his gun. The bullet struck Owens in the knee. Appellant fired a second shot which hit Martin in the abdomen, causing his death.
Appellant went home and called the police. He told the dispatcher that an accident had occurred, he shot a man, and he wanted to turn himself in. He was taken to the police station and arrested.
Appellant argues the evidence is insufficient to support his conviction of battery as a Class C felony under Ind.Code Sec. 35-42-2-1(3) as to Gillespie's injury. He asserts that the two chipped teeth Gillespie suffered as a result of the blow to his mouth do not rise to the level of "serious bodily injury" and his conviction cannot stand.
Appellant acknowledges that upon a claim involving the insufficiency of the evidence, this Court will not reweigh the evidence nor judge the credibility of the witnesses. Gatewood v. State (1982), Ind., 430 N.E.2d 781.
Indiana Code Sec. 35-42-2-1(3) states that battery is a knowing or intentional touching of another person in a rude, insolent, or angry manner. It becomes a Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon. Appellant intentionally struck Gillespie in the face with a gun, which is of course a deadly weapon. We find appellant's Class C battery conviction is supported by the evidence. Litel v. State (1988), Ind., 527 N.E.2d 1114; Johnson v. State (1980), Ind.App., 409 N.E.2d 699.
Appellant also argues the evidence is insufficient to sustain his murder conviction. He contends the evidence shows he attempted to leave the bar until Martin grabbed him and the shooting was in self-defense.
The intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or serious bodily injury. Burse v. State (1987), Ind., 515 N.E.2d 1383.
The jury was instructed on the defense of self-defense. To prevail on a claim of self-defense, appellant must have been in a place where he had a right to be, acted without fault, and acted in reasonable fear or apprehension of death or great bodily harm. Hinkle v. State (1984), Ind., 471 N.E.2d 1088. Whether a defendant acted in self-defense is a question of fact for the jury. When the evidence is conflicting, the jury may reasonably accept or reject the claim of self-defense. The jury must consider the evidence from the defendant's perspective to determine whether he faced apparent danger which caused him to fear death or great bodily harm. Looking to the facts most favorable to the verdict, it will not be overturned if substantial evidence of probative value exists to support it. Kremer v. State (1987), Ind., 514 N.E.2d 1068.
In appellant's case, the record shows that he struck Gillespie in the mouth with his gun. After scuffling with Martin, Martin stepped away from appellant, and appellant fired two shots from his gun. From this evidence, the jury may have properly rejected appellant's self-defense claim. We find the evidence is sufficient to support his murder conviction.
Appellant argues the evidence is insufficient to support his other battery conviction because he did not intend to shoot Owens in the knee. He points out that Owens testified that she assumed appellant...
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