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 Dec 30 2013, 8:54 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN M. O’CONNOR GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
GEORGE WILLIAMS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1304-CR-326 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Lisa F. Borges, Judge Cause No. 49G04-1205-FA-33286
December 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge George Williams appeals his conviction for attempted murder as a class A felony.
Williams raises one issue which we revise and restate as whether the evidence is
sufficient to sustain his conviction. We affirm.
FACTS AND PROCEDURAL HISTORY
On May 9, 2012, Brian Hunter went to his home to eat lunch and let his puppy out
of its crate. As he approached the back door of his home, he noticed that the curtain on
the back door was fluttering and that the window was broken. Hunter entered the home
and, upon turning a corner, observed Williams in the home about six feet away. Williams
immediately reached into his front pocket and produced a Glock .40 caliber pistol that
Hunter recognized as belonging to him. Hunter raised his hands, took a step back, and
said “[h]ey, it’s not worth it. Chill out.” Transcript at 37. Williams ordered Hunter to
“[o]pen the f------ safe,” and Hunter asked Williams again to “chill out” and told him to
“[t]ake whatever you want.” Id. Williams again told Hunter to open the safe, which was
in the basement, and Hunter said he needed a key. Williams then told Hunter to lie on the
floor and throw his cell phone, and Hunter went down on his stomach and threw one of
the two cell phones in his possession. Hunter then observed Williams walk into the
kitchen while Williams kept pointing the gun towards Hunter, and as Hunter was
“looking at [Williams],” Hunter observed Williams look “in both directions and pull[] the
gun up and sho[o]t [him].” Id. at 39. Hunter was shot in the upper back between his
shoulder blades. He heard the sound of glass crunching under Williams’s feet and the
screen door shut, and he called 911.
2 Officer Brian Mack responded to the call, and Hunter was able to provide the
officer with a description of Williams and to tell Officer Mack that Williams shot him
with Hunter’s gun. Officers collected evidence, including a palm print on a jewelry box,
another palm print on the basement door frame, and a tube sock in the backyard. On May
13, 2012, Detective Bill Rogers, a homicide investigator with the Indianapolis
Metropolitan Police Department, received results from one of the palm prints indicating
that the print belonged to Williams. Police arrested Williams on May 21, 2012, at the
residence of friends in which both he and his girlfriend Miranda were hiding. Also, skin
cells recovered from the tube sock matched Williams’s DNA.
On May 18, 2012, the State charged Williams with Count I, attempted murder as a
class A felony; Count II, burglary as a class A felony; Count III, criminal confinement as
a class B felony; Count IV, theft as a class D felony; and Count V, carrying a handgun
without a license as a class A misdemeanor. On February 25, 2013, the court
commenced a jury trial in which evidence consistent with the foregoing was presented.
At trial, Miranda, who was at that time living with Williams, testified that Williams
arrived home on May 9, 2012 and “was freaking out and he was like, ‘I think I shot
somebody. I think I shot somebody,’ . . . . there was blood on his shoes.” Id. at 97. She
testified that Williams told her he had been “robbing” a house and that a man had
“scared” him. Id. at 98. She testified: “[h]e told me the dude was like laying in the
doorway and he tried to like jump over him and the dude grabbed his leg and he just shot
and ran.” Id. Miranda also testified that she noticed Williams had a gun, that Williams
had told her to walk down the street to the scene of the shooting and provide police with a
3 phony physical description of the perpetrator, and that she had complied. Suprina Doss,
Miranda’s mother, testified that Miranda called her the day of the shooting, and Williams
then spoke to her and told her: “You are not going to believe what I just did. I was doing
a burglary and I shot . . . I shot a man . . . the guy come home and I shot him right in his
back.” Id. at 80.
On February 26, 2013, the jury found Williams guilty as charged. On March 13,
2013, the court held a sentencing hearing and sentenced Williams to forty years,
including thirty-five years executed in the Department of Correction followed by five
years of community corrections work release, on Count I, ten years suspended on Count
II to be served consecutive to Count I, and one year on Count V, to be served concurrent
with Counts I and II.1 Thus, Williams received a sentence of thirty-five years in the
Department of Correction, followed by five years of work release, followed by ten years
suspended, for a total of fifty years.
DISCUSSION
The issue is whether the evidence is sufficient to sustain Williams’s conviction for
attempted murder. When reviewing the sufficiency of the evidence needed to support a
criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting
the judgment and any reasonable inferences that can be drawn from such evidence.” Id.
We will affirm if there is substantial evidence of probative value such that a reasonable
1 The court entered its sentence on Count II, burglary, as a class B felony. The court did not enter convictions on Counts III and IV.
4 trier of fact could have concluded the defendant was guilty beyond a reasonable doubt.
Id.
The offense of attempted murder is governed by Ind. Code § 35-42-1-1 and Ind.
Code § 35-41-5-1. To convict a defendant of attempted murder, the State must prove
beyond a reasonable doubt that the defendant, acting with the specific intent to kill,
engaged in conduct which constitutes a substantial step toward the commission of
murder. Mitchem v. State, 685 N.E.2d 671, 676 (Ind. 1997).
According to Williams, the evidence is insufficient to demonstrate that he had the
specific intent to kill Hunter. Specifically, Williams argues that “at the time he shot
Brian Hunter, he had the intent to get out and away from his bungled burglary, not to kill
him.” Appellant’s Brief at 7. Williams argues that his “intent was proven at trial through
his immediate reaction to his girl friend [sic] and mother: ‘Oh, my god. I think I just shot
somebody. I think I just shot somebody,’ like he didn’t know if he actually shot him, or
not.” Id. at 9 (quoting Transcript at 99). He also maintains that, during the burglary,
Free access — add to your briefcase to read the full text and ask questions with AI
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 Dec 30 2013, 8:54 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN M. O’CONNOR GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
GEORGE WILLIAMS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1304-CR-326 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Lisa F. Borges, Judge Cause No. 49G04-1205-FA-33286
December 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge George Williams appeals his conviction for attempted murder as a class A felony.
Williams raises one issue which we revise and restate as whether the evidence is
sufficient to sustain his conviction. We affirm.
FACTS AND PROCEDURAL HISTORY
On May 9, 2012, Brian Hunter went to his home to eat lunch and let his puppy out
of its crate. As he approached the back door of his home, he noticed that the curtain on
the back door was fluttering and that the window was broken. Hunter entered the home
and, upon turning a corner, observed Williams in the home about six feet away. Williams
immediately reached into his front pocket and produced a Glock .40 caliber pistol that
Hunter recognized as belonging to him. Hunter raised his hands, took a step back, and
said “[h]ey, it’s not worth it. Chill out.” Transcript at 37. Williams ordered Hunter to
“[o]pen the f------ safe,” and Hunter asked Williams again to “chill out” and told him to
“[t]ake whatever you want.” Id. Williams again told Hunter to open the safe, which was
in the basement, and Hunter said he needed a key. Williams then told Hunter to lie on the
floor and throw his cell phone, and Hunter went down on his stomach and threw one of
the two cell phones in his possession. Hunter then observed Williams walk into the
kitchen while Williams kept pointing the gun towards Hunter, and as Hunter was
“looking at [Williams],” Hunter observed Williams look “in both directions and pull[] the
gun up and sho[o]t [him].” Id. at 39. Hunter was shot in the upper back between his
shoulder blades. He heard the sound of glass crunching under Williams’s feet and the
screen door shut, and he called 911.
2 Officer Brian Mack responded to the call, and Hunter was able to provide the
officer with a description of Williams and to tell Officer Mack that Williams shot him
with Hunter’s gun. Officers collected evidence, including a palm print on a jewelry box,
another palm print on the basement door frame, and a tube sock in the backyard. On May
13, 2012, Detective Bill Rogers, a homicide investigator with the Indianapolis
Metropolitan Police Department, received results from one of the palm prints indicating
that the print belonged to Williams. Police arrested Williams on May 21, 2012, at the
residence of friends in which both he and his girlfriend Miranda were hiding. Also, skin
cells recovered from the tube sock matched Williams’s DNA.
On May 18, 2012, the State charged Williams with Count I, attempted murder as a
class A felony; Count II, burglary as a class A felony; Count III, criminal confinement as
a class B felony; Count IV, theft as a class D felony; and Count V, carrying a handgun
without a license as a class A misdemeanor. On February 25, 2013, the court
commenced a jury trial in which evidence consistent with the foregoing was presented.
At trial, Miranda, who was at that time living with Williams, testified that Williams
arrived home on May 9, 2012 and “was freaking out and he was like, ‘I think I shot
somebody. I think I shot somebody,’ . . . . there was blood on his shoes.” Id. at 97. She
testified that Williams told her he had been “robbing” a house and that a man had
“scared” him. Id. at 98. She testified: “[h]e told me the dude was like laying in the
doorway and he tried to like jump over him and the dude grabbed his leg and he just shot
and ran.” Id. Miranda also testified that she noticed Williams had a gun, that Williams
had told her to walk down the street to the scene of the shooting and provide police with a
3 phony physical description of the perpetrator, and that she had complied. Suprina Doss,
Miranda’s mother, testified that Miranda called her the day of the shooting, and Williams
then spoke to her and told her: “You are not going to believe what I just did. I was doing
a burglary and I shot . . . I shot a man . . . the guy come home and I shot him right in his
back.” Id. at 80.
On February 26, 2013, the jury found Williams guilty as charged. On March 13,
2013, the court held a sentencing hearing and sentenced Williams to forty years,
including thirty-five years executed in the Department of Correction followed by five
years of community corrections work release, on Count I, ten years suspended on Count
II to be served consecutive to Count I, and one year on Count V, to be served concurrent
with Counts I and II.1 Thus, Williams received a sentence of thirty-five years in the
Department of Correction, followed by five years of work release, followed by ten years
suspended, for a total of fifty years.
DISCUSSION
The issue is whether the evidence is sufficient to sustain Williams’s conviction for
attempted murder. When reviewing the sufficiency of the evidence needed to support a
criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting
the judgment and any reasonable inferences that can be drawn from such evidence.” Id.
We will affirm if there is substantial evidence of probative value such that a reasonable
1 The court entered its sentence on Count II, burglary, as a class B felony. The court did not enter convictions on Counts III and IV.
4 trier of fact could have concluded the defendant was guilty beyond a reasonable doubt.
Id.
The offense of attempted murder is governed by Ind. Code § 35-42-1-1 and Ind.
Code § 35-41-5-1. To convict a defendant of attempted murder, the State must prove
beyond a reasonable doubt that the defendant, acting with the specific intent to kill,
engaged in conduct which constitutes a substantial step toward the commission of
murder. Mitchem v. State, 685 N.E.2d 671, 676 (Ind. 1997).
According to Williams, the evidence is insufficient to demonstrate that he had the
specific intent to kill Hunter. Specifically, Williams argues that “at the time he shot
Brian Hunter, he had the intent to get out and away from his bungled burglary, not to kill
him.” Appellant’s Brief at 7. Williams argues that his “intent was proven at trial through
his immediate reaction to his girl friend [sic] and mother: ‘Oh, my god. I think I just shot
somebody. I think I just shot somebody,’ like he didn’t know if he actually shot him, or
not.” Id. at 9 (quoting Transcript at 99). He also maintains that, during the burglary,
“[h]e was standing over Brian Hunter with the gun” and that “[i]f he intended to kill him,
he had the opportunity to shoot him in a more likely fatal location.” Id. at 10. The State
argues that Williams is merely asking this court to reweigh the evidence.
The Indiana Supreme Court has “unequivocally determined that the requisite
intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause
death or great bodily harm.” Maxwell v. State, 731 N.E.2d 459, 462 (Ind. Ct. App. 2000)
(citing in part Bartlert v. State, 711 N.E.2d 497, 500 (Ind. 1999), and Wilson v. State, 697
N.E.2d 466, 475 (Ind. 1998), reh’g denied), trans. denied. “[D]ischarging a weapon in
5 the direction of a victim is substantial evidence from which the jury could infer intent to
kill.” Perez v. State, 872 N.E.2d 208, 213-214 (Ind. Ct. App. 2007) (quoting Corbin v.
State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006) (citing Leon v. State, 525 N.E.2d 331,
332 (Ind. 1988))), trans. denied.
The evidence favorable to the conviction reveals that Williams was burglarizing
Hunter’s home when Hunter returned home. Williams ordered Hunter to lie down on the
floor and throw his cell phone away from his person, and Hunter complied. Hunter
observed Williams walk into the kitchen while Williams kept his gun pointed at Hunter,
and as Hunter “was sitting there looking at [Williams],” Hunter observed Williams look
“in both directions and pull[] the gun up and sho[o]t [Hunter]” in the back between his
shoulder blades. Transcript at 39. Firing a shot into Hunter’s back while Hunter was
laying on the ground “undoubtedly constitutes using a deadly weapon in a manner likely
to cause death.” See Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996). Based upon the
record, we conclude that the State presented evidence of probative value from which a
reasonable jury could have found that Williams had the specific intent to kill Hunter and
that Williams was guilty beyond a reasonable doubt of attempted murder. See Maxwell,
731 N.E.2d at 462-463 (holding that the evidence was sufficient to sustain the
defendant’s conviction for attempted murder where he pointed and shot his .44 caliber
handgun at two victims at close range). Williams’s arguments amount to an invitation to
reweigh the evidence or judge the credibility of witnesses, which we cannot do. See
Bailey, 907 N.E.2d at 1005.
6 CONCLUSION
For the foregoing reasons, we affirm Williams’s conviction for attempted murder
as a class A felony.
Affirmed.
ROBB, C.J., and BARNES, J., concur.