MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 26 2016, 9:31 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Lisa M. Johnson Gregory F. Zoeller Brownsburg, Indiana Attorney General of Indiana Ian McClean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph Hale, April 26, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1510-CR-1642 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff Judge The Honorable Stanley E. Kroh, Magistrate Trial Court Cause No. 49G03-1504-F5-14719
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016 Page 1 of 7 [1] Joseph Hale (“Hale”) was convicted in Marion Superior Court of Level 1
felony attempted murder. Hale was ordered to serve thirty-five years in the
Department of Correction. Hale appeals and argues that the State failed to
present sufficient evidence to support his Level 1 felony attempted murder
conviction.
[2] We affirm.
Facts and Procedural History
[3] Around 2:30 p.m. on April 24, 2015, Hale entered a Sunoco gas station in
Indianapolis, Indiana, to purchase a beverage and some gasoline. As Hale
stood in line to pay for these items, Kristopher Haskins (“Haskins”) entered the
store with his girlfriend. Haskins approached Hale, and the men argued.1 After
paying the attendant, Hale exited the store followed by Haskins. The men
began arguing again near the gas pumps. This time, Haskins hit Hale in the
head, and Hale responded by throwing a bottle at Haskins’ head. Hale then
pulled out a handgun, chased Haskins, and fired five shots at him.2 Haskins ran
across the street toward a nearby school uninjured and left the scene.3 The
1 We are unsure of the nature of the dispute but attribute the hostility between the two men to Haskins’ relationship with Hale’s ex-girlfriend, Bryann, who was pregnant at the time of the incident. 2 Hale was only a few feet away from Haskins as he fired. 3 Detective Kevin Kern (“Detective Kern”) later located Haskins and tried to interview him. However, Haskins would not answer questions related to the April 24, 2015 incident.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016 Page 2 of 7 entire dispute was captured on surveillance cameras, except for about a ten
second portion of the fight where both men stepped out of the camera’s range.
[4] While this incident occurred, Officer Matthew Thomas (“Officer Thomas”) was
out on his patrol shift and stopped at an intersection where he could see the
Sunoco gas station. He observed two men involved in “some sort of
disturbance.” Tr. p. 41. As Officer Thomas pulled into the gas station, Hale
stopped shooting, but Officer Thomas saw Hale place his hands in a trash can
near a gas pump. Officer Thomas then ordered Hale to the ground and arrested
him.
[5] After the incident, other officers responded to the scene and investigated the
Sunoco parking lot. Officer Thomas looked in the trash can where Hale had
placed his hands and found a .380 caliber semiautomatic pistol and a .22 caliber
revolver. Additionally, officers found five .380 caliber cases along with one live
round of the same caliber on the ground. It was later determined that the
revolver contained six unfired .22 caliber rounds. Although no one was injured
or killed during the incident, officers discovered that one of Hale’s shots hit the
back panel of a vehicle parked at a gas pump.
[6] On April 28, 2015, the State charged Hale with Level 5 felony attempted
battery by means of a deadly weapon, two counts of Level 5 felony criminal
recklessness, and two counts of Level 5 felony carrying a handgun without a
license. On May 19, 2015, the State amended the information by adding a Level
1 felony attempted murder charge and a habitual offender allegation. The State
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016 Page 3 of 7 later dismissed the attempted battery by means of a deadly weapon charge
along with one count of criminal recklessness and one count of carrying a
handgun without a license.
[7] While in jail, Hale made several calls to his “brother” from the jail phone that
were recorded. In one of the calls, Hale admitted to “tryna whack4 yellow boy”5
and asked his brother to contact a man named Rodney to ensure that Haskins
did not appear to testify at a deposition or at the trial. In another call, Hale told
his “brother” that on the day of the shooting he “went over there, bought that
heater.”6 The transcript of these phone calls was admitted into evidence at trial.
Ex. Vol., State’s Ex. 33.
[8] A jury trial was held on September 3 and 4, 2015. The jury found Hale guilty of
Level 1 felony attempted murder, Level 5 felony criminal recklessness, and
Level 5 felony carrying a handgun without a license. However, the jury did not
find Hale to be a habitual offender. The trial court then granted the State’s
motion to dismiss the criminal recklessness and carrying a handgun without a
license charges on September 22, 2015. That same day, a sentencing hearing
was held, and the trial court ordered Hale to serve thirty-five years in the
Department of Correction. Hale now appeals.
4 “Whack” is a street term which means “to hit” or “to assassinate.” See http://www.merriam- webster.com/dictionary/whack 5 Yellow boy is one of Haskins’ nicknames. 6 Heater is a slang term for a gun. See http://www.dictionary.com/browse/heater?s=t
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016 Page 4 of 7 Discussion and Decision
[9] Hale argues that the Level 1 felony attempted murder conviction was not
supported by sufficient evidence. “Upon a challenge to the sufficiency of
evidence to support a conviction, a reviewing court does not reweigh the
evidence or judge the credibility of witnesses, and respects the jury’s exclusive
province to weigh conflicting evidence. Montgomery v. State, 878 N.E.2d 262,
265 (Ind. Ct. App. 2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005)). We consider only probative evidence and reasonable inferences
supporting the verdict. Id. We must affirm if the probative evidence and
reasonable inferences drawn from the evidence could have allowed a reasonable
trier of fact to find the defendant guilty beyond a reasonable doubt. Id.
[10] Hale was charged with: “attempt[ing] to commit the crime of Murder, which is
to knowingly kill another human being, namely Kristopher Haskins, by
engaging in conduct, that is: shooting a deadly weapon, that is: a handgun, at
and against the person of Kristopher Haskins with the intent to kill Kristopher
Haskins, which conduct constituted a substantial step toward the commission
of said crime of Murder.” Appellant’s App. p. 33.
[11] Attempted murder occurs when a person “engages in conduct that constitutes a
substantial step toward the commission” of “intentionally kill[ing] another
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 26 2016, 9:31 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Lisa M. Johnson Gregory F. Zoeller Brownsburg, Indiana Attorney General of Indiana Ian McClean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph Hale, April 26, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1510-CR-1642 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff Judge The Honorable Stanley E. Kroh, Magistrate Trial Court Cause No. 49G03-1504-F5-14719
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016 Page 1 of 7 [1] Joseph Hale (“Hale”) was convicted in Marion Superior Court of Level 1
felony attempted murder. Hale was ordered to serve thirty-five years in the
Department of Correction. Hale appeals and argues that the State failed to
present sufficient evidence to support his Level 1 felony attempted murder
conviction.
[2] We affirm.
Facts and Procedural History
[3] Around 2:30 p.m. on April 24, 2015, Hale entered a Sunoco gas station in
Indianapolis, Indiana, to purchase a beverage and some gasoline. As Hale
stood in line to pay for these items, Kristopher Haskins (“Haskins”) entered the
store with his girlfriend. Haskins approached Hale, and the men argued.1 After
paying the attendant, Hale exited the store followed by Haskins. The men
began arguing again near the gas pumps. This time, Haskins hit Hale in the
head, and Hale responded by throwing a bottle at Haskins’ head. Hale then
pulled out a handgun, chased Haskins, and fired five shots at him.2 Haskins ran
across the street toward a nearby school uninjured and left the scene.3 The
1 We are unsure of the nature of the dispute but attribute the hostility between the two men to Haskins’ relationship with Hale’s ex-girlfriend, Bryann, who was pregnant at the time of the incident. 2 Hale was only a few feet away from Haskins as he fired. 3 Detective Kevin Kern (“Detective Kern”) later located Haskins and tried to interview him. However, Haskins would not answer questions related to the April 24, 2015 incident.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016 Page 2 of 7 entire dispute was captured on surveillance cameras, except for about a ten
second portion of the fight where both men stepped out of the camera’s range.
[4] While this incident occurred, Officer Matthew Thomas (“Officer Thomas”) was
out on his patrol shift and stopped at an intersection where he could see the
Sunoco gas station. He observed two men involved in “some sort of
disturbance.” Tr. p. 41. As Officer Thomas pulled into the gas station, Hale
stopped shooting, but Officer Thomas saw Hale place his hands in a trash can
near a gas pump. Officer Thomas then ordered Hale to the ground and arrested
him.
[5] After the incident, other officers responded to the scene and investigated the
Sunoco parking lot. Officer Thomas looked in the trash can where Hale had
placed his hands and found a .380 caliber semiautomatic pistol and a .22 caliber
revolver. Additionally, officers found five .380 caliber cases along with one live
round of the same caliber on the ground. It was later determined that the
revolver contained six unfired .22 caliber rounds. Although no one was injured
or killed during the incident, officers discovered that one of Hale’s shots hit the
back panel of a vehicle parked at a gas pump.
[6] On April 28, 2015, the State charged Hale with Level 5 felony attempted
battery by means of a deadly weapon, two counts of Level 5 felony criminal
recklessness, and two counts of Level 5 felony carrying a handgun without a
license. On May 19, 2015, the State amended the information by adding a Level
1 felony attempted murder charge and a habitual offender allegation. The State
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016 Page 3 of 7 later dismissed the attempted battery by means of a deadly weapon charge
along with one count of criminal recklessness and one count of carrying a
handgun without a license.
[7] While in jail, Hale made several calls to his “brother” from the jail phone that
were recorded. In one of the calls, Hale admitted to “tryna whack4 yellow boy”5
and asked his brother to contact a man named Rodney to ensure that Haskins
did not appear to testify at a deposition or at the trial. In another call, Hale told
his “brother” that on the day of the shooting he “went over there, bought that
heater.”6 The transcript of these phone calls was admitted into evidence at trial.
Ex. Vol., State’s Ex. 33.
[8] A jury trial was held on September 3 and 4, 2015. The jury found Hale guilty of
Level 1 felony attempted murder, Level 5 felony criminal recklessness, and
Level 5 felony carrying a handgun without a license. However, the jury did not
find Hale to be a habitual offender. The trial court then granted the State’s
motion to dismiss the criminal recklessness and carrying a handgun without a
license charges on September 22, 2015. That same day, a sentencing hearing
was held, and the trial court ordered Hale to serve thirty-five years in the
Department of Correction. Hale now appeals.
4 “Whack” is a street term which means “to hit” or “to assassinate.” See http://www.merriam- webster.com/dictionary/whack 5 Yellow boy is one of Haskins’ nicknames. 6 Heater is a slang term for a gun. See http://www.dictionary.com/browse/heater?s=t
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016 Page 4 of 7 Discussion and Decision
[9] Hale argues that the Level 1 felony attempted murder conviction was not
supported by sufficient evidence. “Upon a challenge to the sufficiency of
evidence to support a conviction, a reviewing court does not reweigh the
evidence or judge the credibility of witnesses, and respects the jury’s exclusive
province to weigh conflicting evidence. Montgomery v. State, 878 N.E.2d 262,
265 (Ind. Ct. App. 2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005)). We consider only probative evidence and reasonable inferences
supporting the verdict. Id. We must affirm if the probative evidence and
reasonable inferences drawn from the evidence could have allowed a reasonable
trier of fact to find the defendant guilty beyond a reasonable doubt. Id.
[10] Hale was charged with: “attempt[ing] to commit the crime of Murder, which is
to knowingly kill another human being, namely Kristopher Haskins, by
engaging in conduct, that is: shooting a deadly weapon, that is: a handgun, at
and against the person of Kristopher Haskins with the intent to kill Kristopher
Haskins, which conduct constituted a substantial step toward the commission
of said crime of Murder.” Appellant’s App. p. 33.
[11] Attempted murder occurs when a person “engages in conduct that constitutes a
substantial step toward the commission” of “intentionally kill[ing] another
human being.” Ind. Code § 35-41-5-1 (attempt); 35-42-1-1(murder). Our
supreme court has held that before a person can be convicted of attempted
murder that he must act with specific intent to kill. See Spradlin v. State, 569
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016 Page 5 of 7 N.E.2d 948, 949 (Ind. 1991). Intent to kill may be inferred from the deliberate
use of a deadly weapon in a manner likely to cause death or serious injury.
Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011) (citing Bethel v. State,
730 N.E.2d 1242, 1245 (Ind. 2000)). Discharging a weapon in the direction of
victim is substantial evidence from which a jury may infer intent to kill. Id.
(citing Fry v. State, 885 N.E.2d 742, 750 (Ind. Ct. App. 2008)).
[12] Hale contends that the State failed to prove that Hale had the specific intent to
kill Haskins. He specifically argues that he was trying to “scare” Haskins
because he only shot in Haskins’ direction. However, the State presented
testimony from Officer Thomas that he heard gunfire and observed Hale
chasing Haskins through the Sunoco parking lot while firing a gun. Tr. p. 43.
Further, the State admitted into evidence a surveillance video from the gas
station parking lot that shows Hale running closely after Haskins while firing
shots at him.
[13] Hale relies on his own testimony that Haskins was threatening him and then
“smacked” him in the head. Tr. p. 137. Hale also testified that Haskins had a
gun and that he disarmed him when the two men were out of the surveillance
camera’s range. He further stated that he was scared of Haskins. However, the
jury did not find that Hale acted in self-defense, and that issue was not raised on
appeal.
[14] Further, Hale admitted at trial to “pointing the gun and shooting at [Haskins]”
while Haskins was unarmed and running away from him across the street.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016 Page 6 of 7 Because Hale discharged the gun in Haskins’s direction, the jury could
reasonably infer from Hale’s conduct alone that Hale had the specific intent to
kill Haskins. We respect the jury’s discretion on this issue. See McHenry, 820
N.E.2d at 126. For all of these reasons, we conclude that the State presented
sufficient evidence to support Hale’s Level 1 felony attempted murder
[15] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1642 | April 26, 2016 Page 7 of 7