Andrew D. Fisher v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 26, 2013
• Docket: 38A04-1301-CR-41
• Status: Unpublished

Opinion

Aug 26 2013, 5:43 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK SMALL GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ANDREW D. FISHER, ) ) Appellant-Defendant, ) ) vs. ) No. 38A04-1301-CR-41 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE JAY CIRCUIT COURT The Honorable Brian D. Hutchison, Judge Cause No. 38C01-1209-FA-13

August 26, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Andrew D. Fisher (“Fisher”) appeals his conviction of attempted murder as a

Class A felony,1 contending that the evidence was insufficient to sustain his conviction.

We affirm.

FACTS AND PROCEDURAL HISTORY

In early September 2012, Fisher was close friends with his neighbor Juan Alcazar

(“Alcazar”), and the two had a mutual friend, Robert Lyons (“Lyons”). On the evening

of September 3, 2012, Fisher went to Lyons’s house, angry and upset over Alcazar’s

involvement with Fisher’s girlfriend. Fisher told Lyons that he was going to confront

Alcazar and “beat his ass.” Tr. at 48, 49. That evening, Fisher consumed alcohol and

Valium, and went to Alcazar’s house around 11:00 p.m. When Alcazar answered the

door and saw Fisher standing there, he asked what Fisher wanted. Fisher did not respond.

Alcazar indicated that he had to wake up early for work, and Fisher repeatedly asked for

alcohol. Alcazar told Fisher that he did not have alcohol and that he had to sleep. When

Fisher asked if he could come inside, Alcazar said no.

Alcazar tried to persuade Fisher to leave, then attempted to shake Fisher’s hand

and close the door, when Fisher stabbed Alcazar in the neck with a kitchen knife, just

above his Adam’s apple. Fisher then stabbed Alcazar a second time in the neck. As

Alcazar ran toward the kitchen, Fisher stabbed him in the back. Alcazar picked up a

kitchen chair to fend off Fisher, but Fisher continued to stab Alcazar twice in the face, in

the back of the head, in his left and right arms, and in the shoulder. After stabbing

Alcazar multiple times, Fisher stopped and told him he did this because Alcazar was with

1 See Ind. Code §§ 35-41-5-1, 35-42-1-1.

2 his girlfriend. Just before leaving, Fisher said “next time you [sic] going to die.” Tr. at

35. In all, Alcazar sustained approximately eight penetrating stab wounds, including five

wounds to the head, neck, and face.

After Fisher left, Alcazar called 911. Alcazar had difficulty breathing, was

bleeding heavily, and thought he was going to die. Officer Judson Wickey of the

Portland Police Department responded to the dispatch, observed Alcazar’s injuries, and

obtained a verbal statement from Alcazar in case Alcazar did not survive. Alcazar

identified his assailant, and another officer, Dustin Mock, went to Fisher’s residence.

While there, Officer Mock retrieved a kitchen knife that Fisher later admitted was the

knife he used to stab Alcazar.

The State charged Fisher with attempted murder as a Class A felony. A jury found

Fisher guilty, and the trial court sentenced Fisher to an executed sentence of thirty years.

Fisher now appeals.

DISCUSSION AND DECISION

Fisher contends that the evidence was insufficient to support his conviction,

asserting that there was no explicit evidence presented to show he acted with specific

intent to murder Alcazar. Fisher points to his statement, “next time you going [sic] to

die,” as indicative that he did not intend to kill Alcazar. Tr. at 35.

In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence

or judge the credibility of the witness. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).

When we are confronted with conflicting evidence, we must consider it most favorably to

the conviction.. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We must affirm if the

3 probative evidence and reasonable inferences drawn from that evidence could have

allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

Indiana Code section 35-41-5-1 provides in relevant part that “[a] person attempts

to commit a crime when, acting with the culpability required for commission of the

crime, he engages in conduct that constitutes a substantial step toward commission of the

crime.” Ind. Code § 35-41-5-1(a). A person who knowingly or intentionally kills

another human being commits murder. See Ind. Code § 35-42-1-1. An attempt to

commit murder is a felony. See Ind. Code § 35-41-5-(a). Thus, to convict Fisher of

Class A felony attempted murder, the State was required to prove beyond a reasonable

doubt that Fisher knowingly or intentionally engaged in conduct that constituted a

substantial step toward the commission of the crime of murder. See Ind. Code §§ 35-41-

5-1, 35-42-1-1.

A conviction of attempted murder requires proof of a specific intent to kill.

Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). An intent to kill may be inferred from

the deliberate use of a deadly weapon in a manner likely to cause death or serious injury.

Id.; see also Mendenhall v. State, 963 N.E.2d 553, 568 (Ind. Ct. App. 2012).

The evidence most favorable to the jury’s verdict shows that Fisher was angry at

Alcazar for his alleged involvement with Fisher’s girlfriend. Fisher went to Alcazar’s

house armed with a knife and stabbed Alcazar repeatedly, with the first two wounds

being to Alcazar’s throat. Viewed consistently with our standard of review, the evidence

is sufficient to establish that Fisher had a specific intent to kill when he stabbed Alcazar.

4 A jury could have inferred this specific intent because Alcazar “deliberate[ly] use[d] a

deadly weapon in a manner likely to cause death or serious injury.” Henley, 881 N.E.2d

at 652. Fisher’s contention is merely a request to reweigh the evidence, which we will

not undertake upon review. Wright, 828 N.E.2d at 906.

Affirmed.

ROBB, C.J., and RILEY, J., concur.