Tucker v. State, 1281S345
| Decision Date | 21 January 1983 |
| Docket Number | No. 1281S345,1281S345 |
| Citation | 443 N.E.2d 840 |
| Parties | Mitchell Allen TUCKER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Dennis Brinkmeyer, Evansville, for appellant.
Linley E. Pearson, Atty. Gen., William E. Dailey, Chief Counsel, Asst. Atty. Gen., Indianapolis, for appellee.
Defendant-appellant, Mitchell Allen Tucker, was originally charged with attempted murder, a class A felony, Ind.Code Secs. 35-42-1-1(1) and 35-41-5-1 (Burns 1979 Repl.), for the shooting of Russell Beard. He was convicted after a trial by jury of attempted voluntary manslaughter, a class B felony, Ind.Code Secs. 35-42-1-3 and 35-41-5-1 (Burns 1979 Repl.), and was sentenced by the trial judge to serve a twenty year term of imprisonment. In this direct appeal, he raises two issues:
(1) Whether the evidence is sufficient to support the jury's verdict.
(2) Whether the sentence imposed was excessive because the aggravating circumstances cited to justify it were insufficient.
Defendant first argues that the evidence presented at his trial was insufficient to sustain the verdict of the jury finding him guilty of attempted voluntary manslaughter. In reviewing claims of insufficient evidence, this Court neither weighs the evidence nor resolves questions of credibility, but only looks to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. If from that viewpoint there was evidence of probative value from which a reasonable trier of fact could conclude that a defendant was guilty beyond a reasonable doubt, we will affirm the conviction. Taylor v. State, (1973) 260 Ind. 64, 291 N.E.2d 890; Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657.
The evidence most favorable to the verdict shows that defendant and Danny Hampton had what was characterized as a "feuding" relationship between them with animosity on both sides. On January 20, 1981, defendant had avoided one confrontation with Hampton by climbing through the rear window of an apartment both were visiting. That evening, defendant went to a bar with his brother and his brother's friend and later surreptitiously removed a loaded shotgun from the friend's car. He then went to the home where Hampton lived with his mother, stepfather and twelve-year-old stepbrother. He concealed the weapon in his clothing, checked to make sure that no one was watching him, and pulled the shotgun out. He laid it on the railing of the front porch, took aim through a lighted window at the residence and fired, striking and seriously injuring Hampton's stepbrother, Russell Beard. Defendant ran to his girlfriend's apartment and asked her to hide the gun exclaiming, "I just shot Danny and the cops will be after me." He was arrested in the early morning hours of the next day and gave a statement to the police in which he admitted seeing someone inside the house and shooting, believing that it was Danny Hampton.
Defendant contends that this evidence is insufficient to support the verdict because it fails to show that defendant intended to strike or injure anyone. Indiana Code Sec. 35-42-1-3 (Burns 1979 Repl.) provides that:
"(a) A person who knowingly or intentionally kills another human being while acting under sudden heat commits voluntary manslaughter, a class B felony."
The information filed in this case charged the defendant with "knowingly" attempting to kill. Indiana Code Sec. 35-41-2-2 (Burns 1979 Repl.) states:
"(b) A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so."
From the evidence presented here showing that defendant aimed a shotgun through the lighted front window of a residence at 11:30 p.m. at a distance and angle calculated to strike someone either seated or standing, the jury could clearly conclude that defendant knowingly attempted to kill another human being. The fact that he did not strike his intended victim but instead injured another is not a defense. We have found in similar cases that the defendant's intent is transferred from the person against whom it was directed to the person actually injured. See, Napier v. State, (1973) 260 Ind. 614, 298 N.E.2d 427; Matthews v. State, (1958) 237 Ind. 677, 148 N.E.2d 334. Thus, there was sufficient evidence to support the jury's verdict that defendant knowingly and intentionally attempted to kill Russell Beard.
Defendant also claims that the trial court erred in imposing his sentence because the aggravating circumstances cited by the court were insufficient to support imposition of the maximum sentence authorized for a class B felony. The basic, or presumptive, sentence for a class B felony is a sentence of ten years with up to ten years added for aggravating circumstances or four years subtracted for mitigating circumstances. Ind.Code Sec. 35-50-2-5 (...
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