Pearson v. State
| Decision Date | 01 June 1988 |
| Docket Number | No. 45S00-8702-CR266,45S00-8702-CR266 |
| Citation | 523 N.E.2d 747 |
| Parties | James PEARSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
David T. Rolland, Tiller & Associates, Merrillville, for appellant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.
On May 9, 1984, James Pearson was found guilty by a jury in the Superior Court of Lake County of Attempted Murder, a class A felony. He was committed to the Department of Corrections for a period of twenty (20) years. He appeals directly to this court raising two issues for our review but because of our disposition of the first issue, concerning sufficiency of the evidence, consideration of the second issue is unnecessary.
The facts show that on September 23, 1983, at about 7:30 p.m., John Thomas, the victim, went to visit his friend. Appellant Pearson arrived later. After approximately 15 minutes, the two left together. The two men stopped to talk at a small gate outside. After a minute, Pearson noticed a police car parked across the street and turned to leave. Thomas stopped to close the gate. When Thomas turned around to follow Pearson, Pearson, who was about eight feet away, shot him once in the abdomen. There had been no argument or struggle between the two.
Pearson testified that as he turned to leave, his gun fell from his pocket. When he grabbed for it, it went off. Pearson testified the shooting was unintentional and accidental. Thomas testified he never saw the gun in Pearson's hand and he did not see Pearson point it at him. Both Pearson and Thomas testified they had been friends before the incident and had not argued prior to the shooting.
Gary Police Officer Brian Hamilton was parked in his patrol car directly across the street from the incident finishing his report on an unrelated matter when he saw Pearson shoot Thomas. He testified he observed Thomas and Pearson engaged in a conversation and then saw a flash of the gun as it was being discharged. He further testified that there was no struggle before the shooting, only conversation. He said that on hearing the shot, he looked and saw Pearson holding the weapon. Pearson stood there a few seconds, still holding the gun which was aimed straight out pointing toward Thomas. Officer Hamilton got out of his car and identified himself. Apparently Pearson did not hear him, so Officer Hamilton fired several shots in the air. Pearson then moved back a few steps but made no attempt to flee. Victim Thomas walked over to the squad car. When Officer Hamilton got to Pearson, he did not have the gun on him. Officer Hamilton found the gun about three feet away from Pearson.
Pearson maintains the evidence was not sufficient to support his conviction for attempted murder. He contends the evidence failed to establish that he specifically intended to kill Thomas. When this court is confronted with a challenge to the sufficiency of the evidence, we neither weigh the evidence nor judge the credibility of witnesses. Rather, we look only to that evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact the verdict will not be overturned. Whitt v. State (1986), Ind., 499 N.E.2d 748, 749. In a prosecution for attempted murder, there must be a showing of the same specific intent to kill as is required for the crime of murder. Tata v. State (1986), Ind., 486 N.E.2d 1025, 1027; Armstrong v. State (1982), Ind., 429 N.E.2d 647, 653. The element of intent can be proven by the surrounding circumstances. White v. State (1986), Ind., 495 N.E.2d 725, 727, citing Warfield v. State (1981), 275 Ind. 396, 401, 417 N.E.2d 304, 307. 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. Armstrong, 429 N.E.2d at 653; Whitt, 499 N.E.2d 750.
Here the evidence presented by the State failed to support even an inference that Pearson intended to kill Thomas. The State's case was premised on Officer...
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