Powell v. State, Court of Appeals Case No. 18A-CR-1812
| Decision Date | 28 June 2019 |
| Docket Number | Court of Appeals Case No. 18A-CR-1812 |
| Citation | 127 N.E.3d 1280 |
| Parties | Alain Kiiwon POWELL, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorney for Appellant: Bruce W. Graham, Graham Law Firm P.C., Lafayette, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, Indiana
[1] Alain Kiiwon Powell Jr. appeals his conviction of Level 1 felony attempted murder1 for the shooting of Davyn Nichols. He presents three issues for our review, which we restate as:
We affirm in part, reverse in part, and remand.
[2] In March 2017, Travis Nichols purchased a Ford Taurus from Tyler Howard. Shortly thereafter, Howard asked to borrow the vehicle, and he did not return it. On March 20, 2017, Travis, Davyn Nichols, and Troy Clements drove in a black Cadillac to the house where they believed the Taurus was parked. Travis was driving, Davyn was in the passenger seat, and Clements was in the back seat of the black Cadillac.
[3] Around the same time Powell, Brittany Warren, and a third unidentified person were in an orange Cadillac. Warren received a call from Howard, who told her that Travis was in a black Cadillac in front of Howard's house. Howard indicated he suspected Travis was there to take back the Taurus and there might be a physical altercation.
[4] Powell drove the orange Cadillac to Howard's house and saw the black Cadillac with Travis in the driver's seat. Powell pulled up to the black Cadillac so that the driver's side of the orange Cadillac was next to the passenger side of the black Cadillac. Powell rolled down the window and asked if Travis "got a problem with" Howard, whom Powell referred to as his "brother." (Tr. Vol. II at 86-7.) Powell and Travis then began to argue.
[5] Davyn saw Powell holding a gun and told Travis that Powell had a gun. Travis said to Powell, "why you bring a gun to a fight for you know I aint got no gun." (Id. at 126) (errors in original). Travis started to pull away from Powell, and Powell fired five to six shots at Travis' vehicle. Two of the shots hit Davyn, who suffered multiple injuries and would have died without medical attention.
[6] Police later apprehended Powell at his father's apartment. On March 24, 2017, the State charged Powell with three counts of Level 1 felony attempted murder for the attempted murders of Clements, Travis, and Davyn; Level 3 felony aggravated battery of Davyn;2 Level 5 felony battery of Davyn by means of a deadly weapon;3 Level 5 felony battery of Davyn resulting in bodily injury;4 Level 5 felony criminal recklessness for firing the gun;5 and Class A misdemeanor carrying a handgun without a license.6 The State subsequently filed an information alleging Powell's sentence could be enhanced because he used a firearm to commit these crimes.7 In addition, the State filed a charging information alleging Powell committed Level 5 felony carrying a handgun without a license with a prior felony conviction.8
[7] After a four-day trial, the jury returned a not guilty verdict on the attempted murder charge for Clements and guilty verdicts on all other charges. The jury was dismissed, and then the trial court found Powell was eligible for the firearm enhancement. On July 9, 2018, the trial court entered convictions for two counts of attempted murder and one count of carrying a handgun without a license. The trial court sentenced Powell to thirty-two years for each attempted murder conviction, to be served consecutive to each other but concurrent with five years for Level 5 felony carrying a handgun without a license with a prior felony conviction. Thus, the court imposed an aggregate sentence of sixty-four years.
[8] When reviewing sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the fact-finder's decision.
Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder's role, and not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. To preserve this structure, when we are confronted with conflicting evidence, we consider it most favorably to the ruling. Id. We affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be drawn from it to support the decision. Id. at 147.
[9] Powell argues the State did not present sufficient evidence to support his conviction of Level 1 felony attempted murder of Davyn. Powell concedes the evidence supports his conviction for the attempted murder of Travis because Powell drove up to Travis' vehicle and spoke directly to Travis. However, Powell contends the State did not prove he possessed the requisite intent to kill Davyn, despite the fact she was the person injured in the shooting. We disagree.
[10] Murder is defined as "knowingly or intentionally kill[ing] another human being," Ind. Code § 35-42-1-1(1) (2017), and attempt is defined as acting with the culpability required for a crime while taking a substantial step toward committing that crime. Ind. Code § 35-41-5-1 (2014) (elements of attempt). However, our Indiana Supreme Court has held that, for a person to be convicted of attempted murder, "the State must prove beyond a reasonable doubt that the defendant [acted] with intent to kill the victim." Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991).
[11] In Corbin v. State , 840 N.E.2d 424 (Ind. Ct. App. 2006), we summarized existing precedent regarding the State's burden in presenting evidence of intent in an attempted murder case:
Intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or great bodily injury, in addition to the nature of the attack and circumstances surrounding the crime. Gall v. State , 811 N.E.2d 969, 975 (Ind. Ct. App. 2004).... Further, our supreme court held that discharging a weapon in the direction of a victim is substantial evidence from which the jury could infer intent to kill. Leon v. State , 525 N.E.2d 331, 332 (Ind. 1988).
[12] Here, Powell confronted Travis after Howard called Powell and indicated Travis may instigate a physical confrontation over the Ford Taurus. Powell and Travis traded words regarding Howard, and Travis testified he was "being another smart butt." (Tr. Vol. II at 126.) While Powell and Travis were speaking to each other, Davyn commented that Powell was loading a gun. Powell's vehicle was situated on Davyn's side of Travis' vehicle, as Powell's driver side was adjacent to the passenger side of Travis' vehicle. Powell then aimed at Travis' vehicle and fired five to six shots as Travis drove away. Based on the ongoing animosity between the parties, Powell's use of a deadly weapon, and the act of firing multiple shots on the side where Davyn was sitting, we conclude the State presented sufficient evidence Powell had intent to kill Davyn and thus committed Level 1 felony attempted murder against Davyn. See Perez v. State , 872 N.E.2d 208, 214 (Ind. Ct. App. 2007) (), trans. denied .
[13] To preserve a claim of error in the giving of a jury instruction, trial counsel must timely object and clearly identify the "claimed objectionable matter and the grounds for the objection." Scisney v. State , 701 N.E.2d 847, 849 (Ind. 1998). Here, the State proffered an instruction that stated:
(Tr. Vol. III at 165) (errors in original). After discussion between the parties and the trial court, Powell agreed to use of the instruction as modified, which stated, "Under the doctrine of transferred intent, the intent to harm one person may be treated as the intent to harm a different person when, through mistake or inadvertence, violence directed towards one person results in injury to a different person." (App. Vol. II at 198.)
[14] On appeal, Powell argues the...
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Powell v. State
...his intent to kill Davyn.3 In a unanimous opinion, the Court of Appeals affirmed in part and reversed in part. Powell v. State , 127 N.E.3d 1280 (Ind. Ct. App. 2019). Citing the "ongoing animosity between the parties," and the fact that Powell had fired multiple times at Davyn's side of the......