Erique Raggs v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 31, 2016
• Docket: 71A05-1510-CR-1831
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 31 2016, 9:39 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana

James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Erique Raggs, August 31, 2016 Appellant-Defendant, Court of Appeals Cause No. 71A05-1510-CR-1831 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jerome Frese, Appellee-Plaintiff. Judge Trial Court Cause No. 71D03-1409-MR-11

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016 Page 1 of 12 Case Summary [1] Erique Raggs appeals his convictions for murder and attempted murder. We

affirm.

Issue [2] The issues before us are:

I. whether there is sufficient evidence to support Raggs’s convictions; and

II. whether the trial court properly instructed the jury regarding the elements of attempted murder.

Facts [3] The evidence most favorable to the convictions is that, on September 13, 2014,

Tony and Angela Shead had a small gathering at their house. Their guests

included Angela’s sister, Debbie Wyche; Debbie’s fiancé, Lonnell Eggerson;

Tony and Angela’s daughter, Antonisha Shead; Antonisha’s cousin, Dorothy

Tyler; and Dorothy’s boyfriend, Raggs. Dorothy and Raggs offered to take the

rest of the group out to a sports bar to watch a boxing match. Angela drove the

group there in her and Tony’s van. While at the bar, Dorothy and Raggs got

into an argument, and Raggs pulled Dorothy out of the bar. Tony attempted to

calm Raggs down. Eventually, the group returned to the van, and Angela

began driving to Dorothy’s grandmother’s house in South Bend, where

Dorothy lived, because of the difficulties Raggs was causing. In the van,

Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016 Page 2 of 12 Dorothy and Raggs continued arguing, and Debbie attempted to intervene to

calm Raggs down.

[4] Angela dropped Dorothy and Raggs off at Dorothy’s grandmother’s house,

where Dorothy’s cousin Marquis Scott also was staying. Tony, Angela,

Debbie, Lonnell, and Antonisha stayed parked outside the house in the van and

did not immediately drive away. After two to three minutes, Dorothy came

running out of the house, screaming “he’s trying to kill me.” Tr. p. 88. Raggs

was following Dorothy out of the house, and Marquis was following Raggs. In

the house, Marquis had been trying to calm Raggs down, and Raggs had

pushed Marquis. Outside, Raggs pushed Dorothy to the ground and was on

top of her. Marquis pulled Raggs off of Dorothy, and the two briefly wrestled.

[5] The occupants of the van got out to break up the fight between Marquis and

Raggs. Antonisha eventually managed to break up the fight. Raggs did not

appear to be injured, and he and Antonisha walked down the street, separating

themselves from the rest of the group. Raggs told Antonisha that he did not

have his cell phone, and she offered to go back to Dorothy’s grandmother’s

house to retrieve it for him. After giving Raggs his cell phone, Antonisha

walked back to the van, where the group gathered to leave because they were

afraid of Raggs. Angela was in the driver’s seat, and Tony was in the front

passenger seat. Debbie sat behind Tony, and Lonnell sat behind Angela.

Antonisha and Dorothy were in the van’s third row. Marquis was going to

follow the van in his own car. Before driving away, Dorothy realized she had

Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016 Page 3 of 12 forgotten to lock up her grandmother’s house, and she and Antonisha started to

get out of the van to do so.

[6] As Dorothy was preparing to exit the van, Raggs approached it with a drawn

handgun that appeared to be a Glock nine millimeter. Raggs first pointed the

gun at Marquis, then approached the van when he saw Dorothy in it. Raggs

looked into the van with the gun pointed and said, “you mother f***ers talk

s***, what you gonna say now?” Tr. p. 292. Tony then put the van into gear

for Angela and she began driving away, with the side door still open. Raggs

began firing into the van when he was still standing directly next to it, mere

inches away, and continued firing until the chamber was empty. He continued

pulling the trigger even after it was empty.

[7] After driving a short distance, Angela pulled over when it was apparent that

Tony had been shot. A bullet had entered Tony’s right side and pierced his

liver, right lung, heart, and aorta, killing him. Additionally, Dorothy was shot

in the right hip and abdomen, but she survived.

[8] On September 15, 2014, the State charged Raggs with murder, Level 1 felony

attempted murder, and Level 3 felony aggravated battery; the State later

dismissed the aggravated battery charge. Raggs fled to Chicago after the

shooting, taking the gun with him, and he was not arrested until October 21,

2014, in Chicago. After being apprehended and questioned by police, Raggs

denied shooting at the van and denied even being present at the time, claiming

he had left the area after the fight with Marquis and had not returned. While

Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016 Page 4 of 12 incarcerated awaiting trial, Raggs approached two inmates and asked them to

provide alibis for him, but they did not do so. The murder weapon was never

found. However, Raggs told one of the inmates that he used a nine millimeter

to carry out the shooting.

[9] At Raggs’s jury trial, the trial court read the charging information to the jury as

part of its preliminarily instructions. Regarding attempted murder, the

information alleged:

On or about September 14, 2014, in St. Joseph County, State of Indiana, Erique Raggs did intentionally attempt to commit the crime of Murder by shooting at Dorothy Tyler, which conduct constituted a substantial step toward the commission of the crime of Murder, which is to knowingly kill another human being.

Id. at 40. The trial court repeated the language of the charging information to

the jury during final instructions. It also instructed the jury on the definitions of

“knowingly” and “intentionally.” The trial court further instructed the jury as

follows:

To convict the defendant Erique Raggs of Count II, Attempted Murder, Level 1 felony, the State must have proved each of the following essential elements beyond a reasonable doubt:

One, the defendant Erique Raggs; two, acting with the specific intent to kill Dorothy Tyler; three, shot at Dorothy Tyler; four, which was conduct constituting a substantial step toward commission of the intended crime of murder.

Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016 Page 5 of 12 If the State failed to prove any one or more of these elements beyond a reasonable doubt, you must find the defendant not guilty of Count II, Attempted Murder, Level 1 felony.

Id. at 559-60. Raggs did not object to the trial court’s instructions.

[10] During closing argument, the prosecutor discussed the concept of “specific

intent to kill” with the jury:

With the Murder charge we talked about knowingly. With the Attempted Murder charge we need to talk about specific intent. That’s the language in an Attempted Murder charge.

Why? Because if somebody is attempting to kill somebody, how do you really know that they want them dead? The law wants to be really sure that there’s enough evidence for you to know that they wanted them—they were actually trying to kill him. They want you to take a good hard look at that and make sure that there’s enough evidence to show that that was his intent. It’s a step above knowingly actually.

A person engages in conduct intentionally if when he engages in that conduct it is his conscious objective to do so. Conscious objective. It’s what you want to do. You’re not just aware of a high probability that you’re doing so. That’s your aim.

With a specific intent to kill Dorothy Tyler.

Ladies and gentlemen, the specific intent to kill may be formed as instantaneously as pulling the trigger. The defendant tried until he ran out of bullets. The gun was clicking. He did it fast. The only thing that saved Dorothy Tyler was the fact that, A, Angela drove away, and, B, that the defendant didn’t get a lucky shot at her. It wasn’t a fatal wound. Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016 Page 6 of 12 Id. at 528-29. As for Raggs, his attorney’s closing argument consisted solely of

a denial that he was the gunman and that he was not present at the time of the

shooting.

[11] The jury found Raggs guilty of both murder and attempted murder. The trial

court entered convictions and sentenced him accordingly. Raggs now appeals.

Analysis I. Sufficiency of the Evidence

[12] Raggs first questions whether there is sufficient evidence to support his

convictions for murder and attempted murder. When reviewing a claim of

insufficient evidence we neither reweigh the evidence nor judge the credibility

of the witnesses. Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 2016). We will

consider only the evidence and reasonable inferences therefrom that support the

conviction. Id. We will affirm if there is probative evidence from which a

reasonable fact-finder could have found the defendant guilty beyond a

reasonable doubt. Id.

[13] Raggs specifically contends there was insufficient evidence of his mens rea with

respect to killing Tony and attempting to kill Dorothy.1 In order to convict

Raggs of murder as charged, the State had to prove that he knowingly or

intentionally killed Tony. See Ind. Code § 35-42-1-1(1). In order to convict

1 On appeal, Raggs makes no attempt to argue that he did not shoot Tony and Dorothy.

Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016 Page 7 of 12 Raggs of the attempted murder of Dorothy, the State was required to prove

that, acting with the specific intent to kill, he engaged in conduct that was a

substantial step toward such killing. Rosales v. State, 23 N.E.3d 8, 11-12 (Ind.

2015) (quoting Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991)). The

heightened requirement of proof of specific intent to kill in attempted murder

cases is based upon the stringent penalties for attempted murder and

ambiguities often involved in proving such a charge. Id. at 12 (quoting Hopkins

v. State, 759 N.E.2d 633, 637 (Ind. 2001)). Thus, although the State only was

required to prove that Raggs knowingly killed Tony, it was required to prove

that he shot Dorothy with the specific intent to kill her. We will focus our

analysis upon whether there was sufficient evidence of Raggs’s intent to kill

with respect to both Tony and Dorothy.

[14] “A person engages in conduct ‘intentionally’ if, when he engages in the

conduct, it is his conscious objective to do so.” I.C. § 35-41-2-2(a). A fact

finder may infer specific intent to kill from the nature of an attack and the

circumstances surrounding the crime. Kiefer v. State, 761 N.E.2d 802, 805 (Ind.

2002). Such intent may be inferred from the use of a deadly weapon in a

manner likely to cause death or great bodily harm. Id. A defendant’s motive to

kill, or lack thereof, also is a factor that may be considered, though motive is

not an element of the crime. Id. at 806. Discharging a weapon in the direction

of a victim is substantial evidence from which a fact finder could infer intent to

kill. Corbin v. State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006). Where

discharge of a firearm is concerned, the distance between the defendant and

Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016 Page 8 of 12 victim is also a relevant consideration in determining whether the defendant

specifically intended to kill the victim. See Richeson v. State, 704 N.E.2d 1008,

1010 (Ind. 1998). The State need not prove that the defendant intended to kill

the actual victim, but only that the defendant intended to kill someone. Blanche

v. State, 690 N.E.2d 709, 712 (Ind. 1998) (citing Straub v. State, 567 N.E.2d 87,

90-91 (Ind. 1991)).

[15] Here, there is no evidence Raggs expressly stated that he intended to kill Tony

or Dorothy, or anyone for that matter. Regardless, we believe there is ample

circumstantial evidence from which the jury could have concluded that Raggs

specifically intended to kill both of them. Raggs had been arguing with

Dorothy and others in the group for some time prior to the shooting.

Immediately prior to the shooting, Raggs’s behavior was such that Dorothy felt

her life was threatened, and he was involved in a physical fight with Marquis.

Raggs approached the van, pointing a firearm at members of the group as they

were preparing to leave, yelling profanities, and asking, “what you gonna say

now?” Tr. p. 292. Raggs looked into the van, then opened fire into it when he

was standing mere inches away. Raggs continued firing as Angela drove away

until the gun’s chamber was empty, and he continued pulling the trigger

thereafter. Given the circumstances leading up to the shooting, Raggs’s

statements immediately beforehand, his proximity to the van when he began

shooting, and his firing of multiple shots directly into the van, there is sufficient

evidence Raggs specifically intended to shoot and kill both Tony and Dorothy;

the other occupants of the van were fortunate not to have been struck by any

Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016 Page 9 of 12 bullets. Thus, there is sufficient evidence to support Raggs’s convictions for

murder and attempted murder.

II. Jury Instructions

[16] Next, Raggs contends the trial court committed fundamental error in

instructing the jury on the elements of attempted murder. The manner of

instructing a jury is largely within the trial court’s discretion, and we will

reverse a conviction based on alleged instructional error only for an abuse of

that discretion. Rosales, 23 N.E.3d at 11. When a defendant fails to object to

alleged instructional error, he or she must establish that the trial court’s error

was fundamental before we will reverse. Id. “Fundamental error ‘is a

substantial, blatant violation of due process’ that ‘must be so prejudicial to the

rights of a defendant as to make a fair trial impossible.’” Id. (quoting Hopkins,

759 N.E.2d at 638).

[17] A proper instruction for attempted murder must inform the jury that in order to

convict the defendant, the State is required to prove beyond a reasonable doubt

that the defendant, acting with intent to kill the victim, engaged in conduct that

was a substantial step toward such killing. Spradlin, 569 N.E.2d at 950. It is

erroneous to instruct a jury that it can convict a defendant of attempted murder

based upon a “knowing” mens rea, and such error may amount to fundamental

error. Ramsey v. State, 723 N.E.2d 869, 872 (Ind. 2000). An erroneous

reference to a “knowing” mens rea in an attempted murder instruction may not

be fundamental if (1) the intent of the perpetrator was not a central issue at trial;

(2) the instructions as a whole sufficiently suggested the requirement of intent to Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016 Page 10 of 12 kill; or (3) both. Williams v. State, 737 N.E.3d 734, 737 (Ind. 2000). Another

relevant consideration is whether the State relied upon the erroneous

instructional language during arguments before the jury. See Rosales, 23 N.E.3d

at 15-16 (holding erroneous accomplice liability attempted murder instructions

may not have amounted to fundamental error if the State had not repeatedly

relied upon the erroneous language during closing argument).

[18] Here, Raggs notes that the jury instructions twice referred to a “knowing” mens

rea for attempted murder, versus once correctly reciting the requirement of

specific intent to kill. We do not believe the mere fact that “knowing” was

twice used erroneously amounts to fundamental error. To the extent there was

error in the trial court’s instructions regarding attempted murder, it was solely

through re-reading of the charging information language in both the

preliminary and final instructions. When more precisely detailing the elements

of attempted murder and what the State had to prove in order to obtain a

conviction, the language used by the trial court correctly paralleled Spradlin’s

requirements. The instructions as a whole informed the jury of the proper mens

rea needed to support a conviction for attempted murder.

[19] Furthermore, although Raggs challenges the sufficiency of the evidence of his

mens rea on appeal, he did not do so at trial. Instead, his defense focused solely

upon identity and whether he was even the shooter. Thus, the intent of the

perpetrator was not a central issue at trial. Finally, during closing argument,

rather than relying on the erroneous instructional language, the prosecutor

instead made it clear to the jury that it had to find Raggs specifically intended to

Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016 Page 11 of 12 kill Dorothy, that a “knowing” mens rea was insufficient, and thoroughly

explained to the jury the difference between “knowing” and “intentional”

conduct. Given the circumstances here, we cannot say that the erroneous

reference to a “knowing” mens rea in two of the jury instructions, taken from

the language of the charging information, amounted to fundamental error.

Conclusion [20] There is sufficient evidence to support Raggs’s convictions for both murder and

attempted murder, and the reference to a “knowing” mens rea in two of the jury

instructions related to attempted murder did not amount to fundamental error.

We affirm.

[21] Affirmed.

[22] Vaidik, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A05-1510-CR-1831 | August 31, 2016 Page 12 of 12