Owens v. State

• Decision Date: 20 October 1989
• Docket Number: No. 16S00-8702-CR-181,16S00-8702-CR-181
• Citation: 544 N.E.2d 1375
• Parties: James OWENS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1375

544 N.E.2d 1375

James OWENS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 16S00-8702-CR-181.

Supreme Court of Indiana.

Oct. 20, 1989.

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant James Owens was convicted following a jury trial of two counts of theft, a class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1985 Repl.), two counts of burglary, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1985 Repl.), and one count of attempted voluntary manslaughter, a class B felony. Ind.Code Secs. 35-41-5-1, 35-42-1-3 (Burns 1985 Repl.). The trial court sentenced Owens to two years for each theft conviction, ten years for each burglary, and twenty years for the attempted voluntary manslaughter. The court ordered consecutive sentences, for a total of forty-four years in prison.

Owens raises four issues on direct appeal:

I. Whether the evidence was sufficient to support the attempted voluntary manslaughter conviction;

II. Whether the trial court erred by refusing Owens' tendered instructions on criminal trespass and criminal mischief as lesser included offenses of burglary;

III. Whether the trial court erred by refusing to give Owens' tendered instruction on criminal conversion as a lesser included offense of theft; and

IV. Whether the trial court erred by imposing consecutive sentences and enhancing Owens' sentence for attempted voluntary manslaughter.

The evidence supporting the jury's verdict reveals that on March 11, 1986, at approximately 7:30 in the evening Owens and two friends, Kevin Arnett and Eric Bulich, went out for a drive. Owens said that he knew of two places where they could get some guns that they could sell. The three men proceeded on highway 421 toward Greensburg, Indiana, until Owens directed Bulich, the driver, to stop at a house owned by William Snyder. Owens and Arnett approached the house. Owens pried open the front door, entered the house, and exited about five minutes later carrying two guns. Owens then directed Bulich to a trailer on Lake Loretta owned by Rock Kirtman. Owens stated they could get more guns and some money from the trailer. When they arrived at the trailer Owens pried open the door, went inside, and returned with a gun and a checkbook.

Next, the men drove to the Ranch Supermarket in Greensburg where Bulich cashed a check and purchased cigarettes. Arnett moved into the driver's seat, and they proceeded to a nearby laundromat where Owens got out to make a phone call. After Owens returned to the car, Arnett pulled out in front of James Krise, nearly causing a collision.

Krise followed the men to the intersection of highways 421 and 74. At the intersection, Krise pulled up alongside the three and asked them if they had a problem. Arnett said no and drove on. Krise continued to follow them. As they drove, Owens, who was seated in the back seat, loaded one of the guns and said that he was "going to get him [Krise] off the ass end of [the] car one way or another." Next, he asked Bulich, who was in the front seat, to move forward. Owens leaned out the window and shot at Krise's truck, which was about thirty feet behind.

Krise followed the men a short distance to record the license plate number. He then flagged down a police car and told the officers that a man in a red and white Dodge had just shot at him. Meanwhile, the three men proceeded to another house where Owens tried unsuccessfully to sell the guns. Shortly thereafter, all three were arrested.

I. Sufficiency of the Evidence

Owens argues that the evidence was insufficient to prove that he harbored a specific intent to kill Krise. When reviewing the sufficiency of the evidence, this Court will not reweigh the evidence nor judge the credibility of witnesses. We will look to the evidence which supports the verdict and reasonable inferences therefrom. The conviction will be affirmed if there is evidence of probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. Stwalley v. State (1989), Ind., 534 N.E.2d 229. One's intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or great bodily harm. Jones v. State (1989), Ind., 536 N.E.2d 267. Firing a gun in the direction of an individual is substantial evidence from which a jury may infer intent to kill. See id.; Rhinehardt v. State (1985), Ind., 477 N.E.2d 89.

Both Arnett and Krise testified that Owens shot in the direction of Krise's vehicle. Physical evidence was introduced to corroborate Krise's testimony that one of the shots pierced the passenger side of his windshield, passed through the interior, and shattered his back window. Arnett also testified that after the shooting Owens said that he hoped that "the son of a bitch [was] dead." This was sufficient evidence to support a jury finding that Owens intended to kill Krise.

II. Jury Instructions

Owens asserts that the trial court erred by refusing his tendered instructions on criminal trespass and criminal mischief as lesser included offenses of burglary and his tendered instruction on criminal conversion as a lesser included offense of theft. The trial court is required to instruct on a lesser included offense only if both parts of a two-step test are met. The first step may be satisfied in either of two ways. An offense may be included if all the statutory elements of the lesser offense are inherently part of the statutory definition of the greater offense. In the alternative, an offense may be included if the charging instrument reveals that the manner and means used to commit the essential elements of the charged crime include all the elements of the lesser crime. Jones v. State (1986), Ind., 491 N.E.2d 980.

The second step of the analysis requires that the evidence at trial justify giving the instruction. The evidence presented must establish all the elements of the lesser included offenses and reveal a serious dispute on the element(s) which distinguish the charged offense from the lesser included offense. If the evidence supporting the charged offense is compelling and without serious conflict, then the trial court is justified in refusing the lesser included instruction. Lawrence v. State (1978), 268 Ind. 330, 375 N.E.2d 208.

The informations charging Owens with burglary were carefully drafted to allege only burglary and not the lesser offenses of criminal trespass and criminal mischief. They included neither the lack of "contractual interest" element necessary for an instruction on criminal trespass, nor the "damage to property" element necessary for an instruction on criminal mischief. Ind.Code Secs. 35-43-1-2, 35-43-2-2 (Burns 1985 Repl.). Consequently, Owens could not inject the lesser charges by way of a jury instruction.

As for his tendered instruction on criminal conversion, Owens argues that all of the elements of criminal conversion were included in the charging document. He says the evidence failed to support an inference of theft because it did not establish the element of "intent to deprive the other person of any part of [the] value or use" of the property. Ind.Code Sec. 35-43-4-2 (Burns 1985 Repl.).

All of the elements of criminal conversion were included in the charging document. The evidence, however, did not reveal any legitimate dispute at trial about the element of "intent to deprive the other person of any part of the value or use" of the property....