Fight v. State

759 N.E.2d 1131, 2001 Ind. App. LEXIS 2134, 2001 WL 1591449
CourtIndiana Court of Appeals
DecidedDecember 14, 2001
DocketNo. 19A01-0103-CR-89
StatusPublished
Cited by1 cases

This text of 759 N.E.2d 1131 (Fight v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fight v. State, 759 N.E.2d 1131, 2001 Ind. App. LEXIS 2134, 2001 WL 1591449 (Ind. Ct. App. 2001).

Opinion

OPINION

HOFFMAN, Senior Judge.

Defendant Appellant Charles Lee Fight, Jr. (Fight) appeals his convictions of three counts of attempted murder, Class A felonies, Ind.Code §§ 85-41-5-1 and 35-42-1-1; and one count of criminal mischief, a Class D felony, Ind.Code § 35-48-1-2.

We affirm.

Fight presents two issues which we expand and restate as three:

I. Whether the State presented evidence sufficient to support Fight's convictions of three counts of attempted murder.
II. Whether Fight's convictions and sentences for three counts of attempted murder violate his constitutional right against double jeopardy.
III. Whether the trial court erred in sentencing Fight.

On March 30, 2000, Officer Wilson attempted to serve divorce papers on Fight at his home. Fight began to act irrationally when he was told the subject matter of the papers, so Officer Wilson left the property to arrange for back-up. Officer Wilson returned with Officers Kieser and Friedman in order to remove Fight from the house as called for in the divorce papers. As the officers approached the house, Fight began shooting at them from inside the house. Officer Friedman was wounded in the altercation, and Fight eventually surrendered.. The State charged Fight with three counts of attempted murder, one for each of the three officers, as well as one count of battery with a deadly weapon and one count of criminal mischief. Following a jury trial, Fight was convicted of the three counts of attempted murder and the single count of criminal mischief, It is from these convie-tions that this appeal ensues.

Fight first contends that the State failed to present sufficient evidence to sustain his convictions of three counts of attempted murder. Particularly, Fight claims that the State did not prove that he had the specific intent required for an attempted murder conviction.

Our standard of review with regard to sufficiency claims is well settled. We neither weigh the evidence nor judge the credibility of the witnesses, and we consider only the evidence favorable to the verdict and all reasonable inferences which can be drawn therefrom. Newman v. State, 677 N.E.2d 590, 593 (Ind.Ct.App.1997). If there is substantial evidence of probative value from which a trier of fact could find guilt beyond a reasonable doubt, we will affirm the conviction. Id.

In order to obtain a conviction for attempted murder, the State must prove beyond a reasonable doubt that Fight was acting with the specific intent to commit the crime of murder and that he engaged in an overt act which constituted a substantial step toward the commission of the crime. Robinson v. State, 730 N.E.2d 185, 194-95 (Ind.Ct.App.2000), trans. demied, 741 N.E.2d 1253; Ind.Code §§ 35-42-1-1 and 35-41-5-1. The intent to kill may be inferred from the intentional use of a deadly weapon in a manner likely [1135]*1135to cause death. Id. at 195; see also Booker v. State, 741 N.E.2d 748 (Ind.Ct.App.2000) (discussing that, as an evidentiary matter, trier of fact may infer that defendant acted with conscious objective to kill from circumstances surrounding deliberate use of deadly weapon in manner likely to cause death or serious bodily injury; however, mere use of deadly weapon in such a manner does not necessarily permit such a conclusion). Fight offers the fact that he is an experienced marksman, who could have killed the officers if he had wanted to, to demonstrate that he had no intent to kill the officers because only one officer was injured. This is a self-serving argument that we are not inclined to accept.

Here, the State presented evidence sufficient to establish Fight's intent to kill when he shot at the officers. The evidence reveals that upon receiving the divorce papers, Fight told Officer Wilson that the only way he was leaving the house was "in a body bag." (Tr. 190). When the three officers returned to the residence together, Officer Friedman saw Fight's face painted with a "death face" when Fight peeked through the front door of the house. (Tr. 330). Shortly thereafter, Fight began firing shots at the officers through the windows of the house. The first shot was in the direction of Officer Wilson who felt debris from the shot hitting his head. Additional shots were then fired at Officer Kieser and the other officers as they ran for cover. Finally, as Officer Friedman was taking cover behind a telephone pole, he heard a "loud pop," saw a muzzle flash, then heard a spraying noise and felt a stinging sensation in his leg. Pellets from the shotgun blast hit the grass in front of him, as well as hitting the telephone pole, his leg and his bulletproof vest. The force of the blast caused Officer Friedman to fall over the embankment just behind him.

Fight also shot at and damaged the police vehicles. A deer slug was shot through the windshield and the passenger headrest and out the rear window of one vehicle, and the second vehicle, including the windshield, was covered with dents from shotgun pellets. Further, the officers testified that during the altercation, Fight continued to shout that he would not be taken out of the house alive. This is sufficient evidence for a jury to conclude beyond a reasonable doubt that Fight harbored the specific intent to kill the officers.

Next, Fight asserts that his convictions and sentences for three counts of attempted murder are violative of his constitutional right against double jeopardy as provided by the Fifth Amendment of the federal constitution and Article I, Section 14 of the Indiana Constitution. Specifically, Fight argues that his right against double jeopardy has been violated because the same evidence establishes the material elements of each of his three convictions of attempted murder.1

Our supreme court has held that the statutory elements test and the actual evidence test are both components of the double jeopardy analysis for same offenses under the Indiana Constitution. Richardson v. State, 717 N.E.2d 32, 49-50 (Ind.1999). In so deciding, the Court held that two or more offenses are the same offense in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essen[1136]*1136tial elements of another challenged offense. Id. at 49.

Here, Fight only challenges his convictions with regard to the second test, termed the "actual evidence test." An explanation of this test is set out in Richardson:

Under this inquiry, the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts.

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Related

Fight v. State
768 N.E.2d 881 (Indiana Supreme Court, 2002)

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Bluebook (online)
759 N.E.2d 1131, 2001 Ind. App. LEXIS 2134, 2001 WL 1591449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fight-v-state-indctapp-2001.