Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jan 27 2014, 7:01 am 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 K. PHILLIPS GREGORY F. ZOELLER Boonville, Indiana Attorney General of Indiana
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BRANDON McMANOMY, ) ) Appellant-Defendant, ) ) vs. ) No. 65A01-1302-CR-62 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE POSEY SUPERIOR COURT The Honorable S. Brent Almon, Judge Cause No.65D01-1103-FA-83
January 27, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Brandon McManomy appeals his conviction of Class A felony attempted murder.1 He
raises three issues, which we consolidate and restate as:
1. Whether the evidence was sufficient to support McManomy’s conviction; and
2. Whether the trial court erroneously limited the testimony of McManomy’s
expert witness.
We affirm.
FACTS AND PROCEDURAL HISTORY
On February 3, 2011, Posey County Sheriff’s Deputy Daniel Montgomery and Indiana
State Trooper Kyle Compton went to the home of McManomy’s father, Brad, to serve an
arrest warrant on McManomy. Deputy Montgomery told Brad he had a warrant for
McManomy’s arrest. Brad reported McManomy was in the basement and took the officers
there.
Deputy Montgomery saw McManomy “sitting, laying on the couch and as we come
down, he kind of jumped, stood in the middle of the room.” (Tr. at 130.) McManomy “was
very agitated at the start – yelled at his dad for letting us in the house and I saw him have
something clenched in his fist hiding behind his right leg.” (Id. at 131.) What McManomy
had was a knife, around which he clenched his fist as he continued to yell and sway back and
forth. As other officers attempted to calm McManomy by talking to him, Deputy
Montgomery unsnapped his Taser. McManomy cut himself in the neck with his knife, and
Deputy Montgomery used his Taser on McManomy. McManomy fell to the floor, then got
1 Ind. Code § 35-41-5-1 (attempt); Ind. Code § 35-42-1-1(1) (murder). 2 back up. Deputy Montgomery again used his Taser, but the second shock appeared to have
no effect on McManomy. Deputy Montgomery then placed the Taser on McManomy’s back
and activated it. McManomy fell to the ground, but again stood back up, swinging his knife
at Deputy Montgomery’s neck, face, and chest. McManomy pinned Deputy Montgomery
against a chair. Deputy Montgomery “hit him again with the Taser and dropped and then as
soon as he went to the ground that time me and Compton jumped down there, took the knife
away, Trooper Compton threw it behind us and then we rendered first aid.” (Id. at 134.)
Deputy Montgomery “saw blood dripping off my chin and puddling underneath my
knees, between my knees and I knew that I was cut.” (Id. at 135.) Deputy Montgomery
sustained lacerations to his face and neck and received thirty-two sutures.
The State filed a motion in limine to limit the testimony of McManomy’s expert
witness “concerning the intent of [McManomy] or any arresting officer or any opinion
concerning how the use of the Taser would affect [McManomy] in this cause, including any
written report or ‘opinion’ of Dr. Barbara Weakley-Jones.” (Appellant’s App. at 32.) The
trial court granted the motion. A jury found McManomy guilty.
DISCUSSION AND DECISION
1. Sufficiency of the Evidence
When we review the sufficiency of evidence supporting any conviction, we do not
reweigh the evidence nor judge the credibility of the witnesses. Arthur v. State, 499 N.E.2d
746, 747 (Ind. 1986). We consider only the evidence favorable to the State, together with all
reasonable inferences drawn therefrom. Id. If there is substantial evidence of probative
3 value supporting each element of the crime charged, we will affirm the conviction. Id.
A person commits murder when he “knowingly or intentionally kills” another person,
Ind. Code § 35-42-1-1, and 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.
McManomy contends the State did not prove he acted with the intent to kill Deputy
Montgomery, and the evidence demonstrated only that he intended to hurt himself. Intent to
kill can be inferred from the use of a deadly weapon in a manner likely to cause death or
great bodily injury. McGee v. State, 699 N.E.2d 264, 265 (Ind. 1998).
McManomy cut through three layers of Deputy Montgomery’s clothing and slashed
his face twice, resulting in injuries requiring thirty-two stitches. Deputy Montgomery
testified that McManomy started swinging at him with a knife and continued to do so as
McManomy pinned him to a chair. The Deputy was able to block some of McManomy’s
blows, but McManomy continued to swing the knife. There was ample evidence McManomy
directed his knife toward Deputy Montgomery in such a manner that the jury could infer
McManomy intended to kill Deputy Montgomery. See Vance v. State, 620 N.E.2d 687, 690
(Ind. 1993) (evidence sufficient to support attempted murder conviction when intent was
displayed through “knife-wielding” of Vance’s accomplice).2
2 McManomy suggests his own injuries left him without the ability to form intent to kill. He offers no authority to support the apparent premise that an injured person cannot intend to kill someone else, and we decline to so hold. 4 2. Limitation of Expert Testimony
McManomy’s expert witness, Dr. Barbara Weakley-Jones,3 offered opinions regarding
the effects of a Taser, including:
A Taser device is a human electro muscular incapacitation device which temporarily overrides the control systems of the body to impair muscle control. The tasing would make it difficult to impossible for purposeful movement of the defendant while the Taser electrodes were attached and still providing electrical stimulus. . . . The reports all state that each time [McManomy] was tasered, that he fell to the ground, incapacitated for a short period of time and then started to stand up, swinging the knife as to keep them away and not necessarily approaching the officers and then continued to injure himself. After being tasered and loosing so much blood from the neck injury, it would be difficult to determine any intent by the defendant to knowingly attempt to assault the officer, and during the encounter determine whether the act was voluntary or involuntary.
(Exhibit Volume at 1-2.) The trial court excluded that evidence, but McManomy contends it
was admissible under Evidence Rule 702(a), as the doctor was qualified to render that
opinion and it would assist the trier of fact.
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jan 27 2014, 7:01 am 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 K. PHILLIPS GREGORY F. ZOELLER Boonville, Indiana Attorney General of Indiana
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BRANDON McMANOMY, ) ) Appellant-Defendant, ) ) vs. ) No. 65A01-1302-CR-62 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE POSEY SUPERIOR COURT The Honorable S. Brent Almon, Judge Cause No.65D01-1103-FA-83
January 27, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Brandon McManomy appeals his conviction of Class A felony attempted murder.1 He
raises three issues, which we consolidate and restate as:
1. Whether the evidence was sufficient to support McManomy’s conviction; and
2. Whether the trial court erroneously limited the testimony of McManomy’s
expert witness.
We affirm.
FACTS AND PROCEDURAL HISTORY
On February 3, 2011, Posey County Sheriff’s Deputy Daniel Montgomery and Indiana
State Trooper Kyle Compton went to the home of McManomy’s father, Brad, to serve an
arrest warrant on McManomy. Deputy Montgomery told Brad he had a warrant for
McManomy’s arrest. Brad reported McManomy was in the basement and took the officers
there.
Deputy Montgomery saw McManomy “sitting, laying on the couch and as we come
down, he kind of jumped, stood in the middle of the room.” (Tr. at 130.) McManomy “was
very agitated at the start – yelled at his dad for letting us in the house and I saw him have
something clenched in his fist hiding behind his right leg.” (Id. at 131.) What McManomy
had was a knife, around which he clenched his fist as he continued to yell and sway back and
forth. As other officers attempted to calm McManomy by talking to him, Deputy
Montgomery unsnapped his Taser. McManomy cut himself in the neck with his knife, and
Deputy Montgomery used his Taser on McManomy. McManomy fell to the floor, then got
1 Ind. Code § 35-41-5-1 (attempt); Ind. Code § 35-42-1-1(1) (murder). 2 back up. Deputy Montgomery again used his Taser, but the second shock appeared to have
no effect on McManomy. Deputy Montgomery then placed the Taser on McManomy’s back
and activated it. McManomy fell to the ground, but again stood back up, swinging his knife
at Deputy Montgomery’s neck, face, and chest. McManomy pinned Deputy Montgomery
against a chair. Deputy Montgomery “hit him again with the Taser and dropped and then as
soon as he went to the ground that time me and Compton jumped down there, took the knife
away, Trooper Compton threw it behind us and then we rendered first aid.” (Id. at 134.)
Deputy Montgomery “saw blood dripping off my chin and puddling underneath my
knees, between my knees and I knew that I was cut.” (Id. at 135.) Deputy Montgomery
sustained lacerations to his face and neck and received thirty-two sutures.
The State filed a motion in limine to limit the testimony of McManomy’s expert
witness “concerning the intent of [McManomy] or any arresting officer or any opinion
concerning how the use of the Taser would affect [McManomy] in this cause, including any
written report or ‘opinion’ of Dr. Barbara Weakley-Jones.” (Appellant’s App. at 32.) The
trial court granted the motion. A jury found McManomy guilty.
DISCUSSION AND DECISION
1. Sufficiency of the Evidence
When we review the sufficiency of evidence supporting any conviction, we do not
reweigh the evidence nor judge the credibility of the witnesses. Arthur v. State, 499 N.E.2d
746, 747 (Ind. 1986). We consider only the evidence favorable to the State, together with all
reasonable inferences drawn therefrom. Id. If there is substantial evidence of probative
3 value supporting each element of the crime charged, we will affirm the conviction. Id.
A person commits murder when he “knowingly or intentionally kills” another person,
Ind. Code § 35-42-1-1, and 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.
McManomy contends the State did not prove he acted with the intent to kill Deputy
Montgomery, and the evidence demonstrated only that he intended to hurt himself. Intent to
kill can be inferred from the use of a deadly weapon in a manner likely to cause death or
great bodily injury. McGee v. State, 699 N.E.2d 264, 265 (Ind. 1998).
McManomy cut through three layers of Deputy Montgomery’s clothing and slashed
his face twice, resulting in injuries requiring thirty-two stitches. Deputy Montgomery
testified that McManomy started swinging at him with a knife and continued to do so as
McManomy pinned him to a chair. The Deputy was able to block some of McManomy’s
blows, but McManomy continued to swing the knife. There was ample evidence McManomy
directed his knife toward Deputy Montgomery in such a manner that the jury could infer
McManomy intended to kill Deputy Montgomery. See Vance v. State, 620 N.E.2d 687, 690
(Ind. 1993) (evidence sufficient to support attempted murder conviction when intent was
displayed through “knife-wielding” of Vance’s accomplice).2
2 McManomy suggests his own injuries left him without the ability to form intent to kill. He offers no authority to support the apparent premise that an injured person cannot intend to kill someone else, and we decline to so hold. 4 2. Limitation of Expert Testimony
McManomy’s expert witness, Dr. Barbara Weakley-Jones,3 offered opinions regarding
the effects of a Taser, including:
A Taser device is a human electro muscular incapacitation device which temporarily overrides the control systems of the body to impair muscle control. The tasing would make it difficult to impossible for purposeful movement of the defendant while the Taser electrodes were attached and still providing electrical stimulus. . . . The reports all state that each time [McManomy] was tasered, that he fell to the ground, incapacitated for a short period of time and then started to stand up, swinging the knife as to keep them away and not necessarily approaching the officers and then continued to injure himself. After being tasered and loosing so much blood from the neck injury, it would be difficult to determine any intent by the defendant to knowingly attempt to assault the officer, and during the encounter determine whether the act was voluntary or involuntary.
(Exhibit Volume at 1-2.) The trial court excluded that evidence, but McManomy contends it
was admissible under Evidence Rule 702(a), as the doctor was qualified to render that
opinion and it would assist the trier of fact.
We review evidentiary rulings for an abuse of discretion. Mogg v. State, 918 N.E.2d
750, 755 (Ind. Ct. App. 2009). An abuse of discretion occurs when the trial court’s decision
is clearly against the logic and effect of the facts and circumstances before it. Id. In
determining whether the trial court abused its discretion, we do not reweigh evidence and we
consider conflicting evidence in a light most favorable to the trial court’s ruling. Id.
Dr. Weakley-Jones’ proffered testimony addressed whether someone experiencing
blood loss and use of a Taser could form criminal intent. The trial court did not err in
3 The doctor’s name is spelled in different ways throughout the briefs and transcript. We adopt the spelling used in a letter from Dr. Weakley-Jones to McManomy’s counsel. 5 limiting her expert testimony. Evidence Rule 704(b) provides: “Witnesses may not testify to
opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of
allegations; whether a witness has testified truthfully; or legal conclusions.” McManomy
attempted to introduce evidence that “after being tasered and loosing [sic] so much blood
from the neck injury, it would be difficult to determine any intent by the defendant to
knowingly attempt to assault the officer.” (App. at 30) (italics omitted). This was
impermissible testimony as to McManomy’s intent, and the trial court did not err in
excluding it. See Moore v. State, 771 N.E.2d 46, 56 (Ind. 2002) (doctor’s opinion as to what
Moore was thinking when he shot a police officer “would have directly reflected on
[Moore’s] intent, guilt, or innocence, and thus was an inadmissible conclusion regarding
intent).” The limitation of the expert’s testimony was not an abuse of discretion.
CONCLUSION
The State presented sufficient evidence McManomy committed attempted murder
when he attacked Deputy Montgomery with a knife, and the trial court did not abuse its
discretion when it granted the State’s motion in limine to prevent McManomy’s expert from
testifying about McManomy’s intent. Accordingly, we affirm.
Affirmed.
VAIDIK, C.J., and RILEY, J., concur.