Kiefer v. State
| Decision Date | 04 January 2002 |
| Docket Number | No. 44S03-0201-CR-11.,44S03-0201-CR-11. |
| Citation | 761 N.E.2d 802 |
| Parties | Robert KIEFER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Jeffrey W. Wible, LaGrange, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Nandita G. Shepherd, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Robert Kiefer appeals his conviction for attempted murder and argues that insufficient evidence supported the jury's verdict. Because the State failed to prove that Kiefer had the specific intent to commit murder, we reverse.
On the evening of September 8, 1999, fourteen-year-old Chris Meringa was walking down County Road 750 North to his home in Shipshewana. As he passed Robert Kiefer's house, Meringa heard an "explosion type noise." (R. at 201-02.) Unaware that a gun had been fired, but startled by the sound, Meringa turned and looked quickly in the direction of Kiefer's residence. Meringa saw "[l]ots of black smoke" and sprinted home. (Id.)
The State charged Kiefer with attempted murder. A jury found Kiefer guilty, and the court sentenced him to twenty-two years in prison.
Kiefer appealed his conviction. The Court of Appeals affirmed, holding that the instruction on attempted murder was not erroneous and that there was sufficient evidence to convict Kiefer. Kiefer v. State, slip op. at 5-6, 747 N.E.2d 82 (Ind.Ct.App. 2001). We now grant transfer and reverse.
Kiefer contends that the State failed to produce sufficient evidence to convict him of attempted murder. We have closely scrutinized the record and conclude that the State did not meet its burden of proving that Kiefer intended to kill Meringa.1
In reviewing sufficiency claims, we will not invade the province of the jury and reweigh evidence or assess the credibility of witnesses. Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdict, and we will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Taylor v. State, 681 N.E.2d 1105, 1110 (Ind.1997).
The State presented the testimony of five eyewitnesses: Chris Meringa, Kiefer's two grandchildren, and two other neighborhood children. (R. at 199, 214, 227, 233, 245.) Meringa was walking on the roadway roughly thirty feet from Kiefer, (R. at 206), and the other four minors were standing near Kiefer when he fired the gun. (R. at 238.) The jury also heard evidence from three police officers and from Meringa's brother-in-law. (R. at 256, 270, 283, 288.)
Meringa first testified that as he was walking by Kiefer's home, he heard an explosion. (R. at 202.) Looking back and seeing a plume of black smoke, he sprinted home. (Id.) Meringa did not know a gunshot had been fired until after he got home, when Kiefer's grandson Travis arrived. (R. at 203.) Although Kiefer and Meringa lived in the same neighborhood, Meringa testified that he had never spoken with Kiefer, had never been to his home, and had never had any problems with him in the past. (R. at 204-05.) Asked if he was accusing Kiefer of firing at him, Meringa said "No." (R. at 209.)
David Weirich, Jr., a twelve-year-old neighbor of Kiefer's, testified next. (R. at 214-16.) David and his brother Cain had gone to Kiefer's to retrieve their father's loaned air compressor. (R. at 216-17.) David testified:
(R. at 219.) On cross-examination, David clarified that Kiefer shot at the bush, not at Meringa. (R. at 226.)
Cain Mullins, David Weirich's thirteen-year-old brother, was next on the stand. (R. at 217, 228.) Cain stated that as Chris was walking by, Kiefer "shot at him." (R. at 230.) Cain testified that after Kiefer fired the gun Kiefer said, "That kid must be scared now." (R. at 231.)
Travis Kiefer, Kiefer's seventeen-year-old grandson, testified next. (R. at 233.) Travis lived with Kiefer. (Id.) Travis testified that Kiefer was holding the gun because the two of them had been target shooting in the backyard, (R. at 235), and that Kiefer was an experienced and accurate marksman. (R. at 237-38.) The following exchange occurred:
(R. at 238-39.) On cross-examination, Travis testified that the gun had four rounds remaining after the gunshot in question. (R. at 242.) Travis further stated that Kiefer "could have been firing at the bush or he could have been firing at the trash box right beside the bush." (R. at 241.) Travis concluded by testifying that Kiefer turned and walked casually back into the house after firing the gun. (R. at 242.)
The final eyewitness to testify was Heather Goodwin, Kiefer's seventeen-year-old granddaughter. (R. at 245-46.) She too lived in her grandfather's home. (R. at 246.) Heather testified that Kiefer asked whom the person was walking down the road and then fired at a bush. (R. at 247.) After the police arrived on the scene, Heather gave a statement that her grandfather had been "moody—worse than a pregnant lady" and "fine one minute and the next minute ... really mad and yelling about everything." (R. at 249.)
Sergeant Terry Martin of the LaGrange County Sheriff's Department testified next. (R. at 256-57.) Martin was a neighbor of Kiefer's and was the first to respond to the incident. (R. at 258-60.) Martin testified that Heather Goodwin reported the shooting, (R. at 258), and he described Kiefer's unusual behavior immediately before being taken into custody.2 (R. at 260-62.) Deputy Sheriff Clifford Hibbs of the LaGrange County Sheriff's Department followed Martin. (R. at 270.) He testified that there were four rounds remaining in Kiefer's gun. (R. at 272-74.) Moreover, he testified that Kiefer's gun was single-action, meaning that Kiefer would have to cock the gun before firing again. (R. at 275.)
Michael Brothers, Chris Meringa's brother-in-law, testified next for the State. (R. at 283-84.) Brothers spoke with Travis Kiefer soon after the shooting. (R. at 284-85.) The following dialogue occurred:
(R. at 286.)
The final witness to testify was Officer Tad Oakley, a detective with the LaGrange County Sheriff's Department. (R. at 288.) Oakley interviewed Travis Kiefer the day after the shooting. (R. at 289.) Travis told Oakley that his grandfather "shot towards a tree and the boy." (R. at 294.) Oakley further testified that police used metal detectors but were unable to locate the bullet fired from Kiefer's gun, (R. at 299-300), and saw no evidence of broken limbs on the bush allegedly shot at by Kiefer. (R. at 300.)
The question here is whether Kiefer acted with the requisite intent to kill Meringa when he fired his gun. In a prosecution for attempted murder, the State must show a specific intent to kill. See Armstrong v. State, 429 N.E.2d 647 (Ind.1982)
. Intent to kill may be inferred from the nature of the attack and the circumstances surrounding the crime. Nunn v. State, 601 N.E.2d 334 (Ind.1992). Additionally, the trier of fact may infer intent to kill from the use of a deadly weapon in a manner likely to cause death or great bodily harm. Wilson v. State, 697 N.E.2d 466 (Ind.1998).
This Court has on very rare occasion overturned murder and attempted murder convictions because of insufficient evidence establishing an intent to kill. See, e.g., Bethel v. State, 730 N.E.2d 1242 (Ind.2000)
(); Nunn v. State, 601 N.E.2d 334 (); Pearson v. State, 523 N.E.2d 747 (Ind.1988) (). The present case has much in common with these.
First, Kiefer did not even know the identity of the person walking down the road. Meringa testified that he did not know Kiefer, had never spoken with him, and had experienced no problems with him previously. The record reveals no motive or reason for Kiefer to kill Meringa. While motive is not an element of the crime, the absence of motive is a significant exculpatory factor here because an inference is necessary to establish Kiefer's intent to kill Meringa. See, e.g., Osbon v. State, 213 Ind. 413, 13 N.E.2d 223 (1938); German v. State, 166 Ind.App. 370, 337 N.E.2d 883 (1975).
Second, the evidence presented shows that Kiefer's...
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