Juwan Jones v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 24, 2016
• Docket: 71A04-1507-CR-913
• Status: Published

Opinion

MEMORANDUM DECISION FILED May 24 2016, 8:06 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

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 S. Lenyo Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana

Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Juwan Jones, May 24, 2016 Appellant-Defendant, Court of Appeals Case No. 71A04-1507-CR-913 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff. Marnocha, Judge Trial Court Cause No. 71D02-1407-F1-1

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016 Page 1 of 11 Statement of the Case [1] Juwan Jones appeals his conviction for attempted murder, a Level 1 felony, and

aggravated battery, as a Level 3 felony, following a jury trial. Jones raises three

issues on appeal which we consolidate and restate as follows:

1. Whether the trial court abused its discretion when it denied Jones’ motion to dismiss the attempted murder charge.

2. Whether the State presented sufficient evidence to support his convictions.

[2] We affirm.

Facts and Procedural History [3] On July 9, 2014, between 10:00 p.m. and 11:00 p.m., Willie Menyard went

with his son, Willie Thomas, to a gas station located at Western Avenue and

Falcon Avenue in South Bend to fill his son’s vehicle with gas. Menyard saw

his niece at the gas station, spoke with her, pumped gas into Thomas’ vehicle,

and went inside the gas station’s convenience store to pay.

[4] While Menyard was inside the store, a red vehicle with a white top, later

identified as Jones’ vehicle, entered the gas station parking lot. After Menyard

exited the store and had walked a few feet toward Thomas’ vehicle, the

passenger in the red vehicle, later identified as Jones, reached across the driver,

later identified as Isaiah Samelton, and aimed a gun in Menyard’s direction.

Then Menyard, Thomas, and the gas station cashier, Tony Garcia, all heard a

round of multiple gun shots, but none of them saw who was shooting. At that Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016 Page 2 of 11 time, Menyard was struck with a bullet which went into the right side of his

back near the rib area and through his right arm. Menyard stated that the

bleeding “felt like water . . . running down [his] back.” Tr. at 79. Thomas

drove Menyard to the hospital where Menyard’s wounds were treated and

Menyard was kept overnight.

[5] In the meantime, Garcia heard several more gun shots as he observed the red

and white vehicle circling the parking lot, and he called the police. Garcia then

observed the red and white car pull up to the west side of the gas station, and he

heard another round of gun shots, which sounded like more than one gun being

shot. There were a total of twenty-three gun shots at the gas station that

evening. The gas station had one operating surveillance camera on top of the

entrance to its convenience store, and that camera caught video of the red and

white car and the shootings.

[6] South Bend Police Officer Greg Howard, along with other officers, was

dispatched to the gas station due to a ShotSpotter 1 alert, and he arrived on the

scene after Menyard had already been taken to the hospital. Officer Howard

watched the gas station’s surveillance camera footage, which showed that a red

Buick with a light colored top, heavy damage to the driver’s side door, a

1 ShotSpotter is an acoustic gunshot detection and location system produced and operated by SST, Inc. that uses microphones in a geographic area to listen for the sound of gunfire. ShotSpotter detects and records the sound of gunfire and uses multilateration (similar to triangulation) to determine the location of the gunfire. It then reports that location to the local law enforcement agencies that are its customers, which here included the South Bend Police Department.

Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016 Page 3 of 11 temporary license plate, and a luggage rack on the trunk was involved in the

shooting. Officer Howard also had a description of the driver of the car as a

black male with no shirt on and the passenger of the car as a black male with

dreadlocks.

[7] A short time after viewing the surveillance footage, Officer Howard began a

search for the red Buick. He saw a red Buick that matched the description of

the suspect vehicle parked in front of a house on Meade Street, not far from the

gas station on Western Avenue. He observed a woman and two men on the

front porch of the house, and the men matched the description of the suspects.

Officer Howard surveilled the house and saw the two suspects enter the red

Buick and travel south. Officer Howard and another officer, Officer Anuar

Velazquez, began following the red Buick. Officer Howard triggered his lights

and sirens to initiate a traffic stop and the red Buick ultimately stopped on

Huron Street. The passenger then exited the vehicle and started to run down a

nearby alley.

[8] Officer Howard chased after the passenger while Officer Velzquez stayed with

the red Buick and ultimately detained the driver, Samelton. Officer Howard

saw the passenger, later identified as Jones, attempt and fail to jump over a

privacy fence. At that point Officer Howard saw Jones “bobble something”

and observed something drop to the ground. Tr. at 110. Jones proceeded to

run through a vacant lot as Officer Howard chased after him and yelled,

“Police! Stop running!” Id. Jones ultimately stopped and laid down, and

Officer Howard detained him.

Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016 Page 4 of 11 [9] Officer Howard then went back to the area by the privacy fence where he saw

something fall to the ground, and he found a loaded brown handgun and a gun

magazine near the handgun. Crime scene technicians also searched the crime

scene areas of the gas station and the traffic stop, and they found shell casings at

the gas station, a plastic bag containing a number of unfired bullets on the

ground just outside the Buick’s passenger-side door, two Smith and Wesson

gun magazines in the Buick’s glove box, and shell casings on the driver’s side

floor board of the Buick. The following day, Officer Howard and another

officer went back to the scene of the traffic stop and found a second handgun on

the other side of the privacy fence that Jones had attempted to jump over.

Ballistics confirmed that the spent shell casings recovered from the gas station

crime scene had been fired from the two guns recovered at the scene of the

traffic stop. The crime lab also found Jones’ fingerprints on the two gun

magazines that had been found in the Buick’s glove box.

[10] Bureau of Alcohol, Tobacco, Firearms, and Explosives Agent Sheldon Scott

interviewed Jones on the night of July 9, and Jones admitted that the red Buick

in which he was stopped and which appeared in the surveillance footage

belonged to him and that he was in that car the entire night of July 9. Jones

also admitted that the first handgun recovered at the scene of the traffic stop

was his gun and that he had it with him the entire evening of July 9. Jones

denied being at the gas station on July 9 and denied any involvement in the

shooting. He also denied knowing Samelton. Jones subsequently made a

Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016 Page 5 of 11 telephone call from jail to his mother and told her that the police “got [him] on

camera.” State’s Ex. 100.

[11] On July 11, 2014, the State charged Jones with attempted murder, a Level 1

felony, and aggravated battery, as a Level 3 felony. On April 22, 2015, Jones

filed a motion to dismiss the attempted murder charge on the grounds that the

charging information failed to name an alleged victim. The trial court

summarily denied that motion on the same day because the motion was

untimely.

[12] Following a trial on April 22 and 23, 2015, a jury found Jones guilty as

charged. On June 22, 2015, the trial court sentenced Jones to an executed term

of thirty years for attempted murder and an executed term of nine years for

aggravated battery, with the sentences to run concurrently. This appeal ensued.

Discussion and Decision Issue One: Motion to Dismiss

[13] Jones contends that the trial court erred in denying his motion to dismiss.

Jones’ motion alleged that the State’s failure to identify in the charging

information the specific victim of the alleged attempted murder violated the

Sixth Amendment to the United States Constitution and Article 1, Section 13 of

the Indiana Constitution.2 We review a trial court’s decision on a motion to

2 Specifically, Jones alleged the lack of the victim’s identity in the charging information denied him his federal and state constitutional rights to be informed of the nature and cause of the action against him.

Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016 Page 6 of 11 dismiss for an abuse of discretion, and we reverse the decision only where it is

clearly against the logic and effect of the facts and circumstances. See, e.g., State

v. Gill, 949 N.E.2d 848, 849 (Ind. Ct. App. 2011), trans. denied.

[14] Indiana Code Section 35-34-1-4(b)(1) (2014) requires that a motion to dismiss

be filed “no later than . . . twenty (20) days” prior to the omnibus date when the

defendant is charged with a felony. Here, the omnibus date was September 22,

2014. Appellant’s App. at A-69; Tr. at 4. Yet Jones did not file his motion to

dismiss until April 22, 2015, which was 213 days after the omnibus date. When

a defendant fails to timely file his motion to dismiss, the statute provides that

the trial court may “summarily den[y]” the motion if it is based on a ground

specified in Indiana Code Section 35-34-1-4(a)(1)-(5). Ind. Code § 35-34-1-4(b).

Jones’ motion to dismiss was based upon either Indiana Code Section 35-34-1-

4(a)(1) (the indictment or information is defective) or Indiana Code Section 35-

34-1-4(a)(4) (the indictment or information does not state the offense with

sufficient certainty). Therefore, the trial court did not abuse its discretion in

summarily denying his untimely motion to dismiss.

Issue Two: Sufficiency of the Evidence

Standard of Review

[15] Jones maintains that the State failed to provide sufficient evidence to support

either of his convictions. In reviewing a sufficiency of the evidence claim, we

neither reweigh the evidence nor assess the credibility of the witnesses. See, e.g.,

Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the

Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016 Page 7 of 11 probative evidence and reasonable inferences therefrom that support the

conviction, Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App. 2012), trans.

denied, and we “consider conflicting evidence most favorably to the trial court’s

ruling,” Wright v. State, 828 N.E.2d 346, 352 (Ind. 2005). We affirm if the

probative evidence and reasonable inferences drawn from that evidence “could

have allowed a reasonable trier of fact to find the defendant guilty beyond a

reasonable doubt.” Jackson, 925 N.E.2d at 375.

Attempted Murder

[16] Pursuant to Indiana Code Sections 35-41-5-1 and 35-42-1-1(1), to prove that

Jones attempted to commit murder, the State was required to show that, with

the intent to commit the crime of murder, Jones discharged a firearm in the

direction of others with the intent to kill, which conduct comprised a substantial

step toward the commission of the crime of murder. On appeal, Jones asserts

that the State failed to provide sufficient evidence that (1) he discharged a

firearm at the gas station and (2) he had the specific intent to kill. However, the

State has met its burden.

[17] Although Jones is correct that no witness saw Jones discharge a firearm, a

conviction may be based on circumstantial evidence alone. Fry v. State, 885

N.E.2d 742, 750 (Ind. Ct. App. 2008), trans. denied. Here, the State provided

the following circumstantial evidence that Jones was one of the shooters at the

gas station on July 9, 2014: (1) the surveillance footage from the gas station

shows Jones’ car entering the gas station parking lot with the dreadlocked

Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016 Page 8 of 11 passenger leaning over a shirtless driver and shooting a firearm; (2) Jones

admitted to his mother in a jail house telephone call that the police “got [him]

on camera,” State’s Ex. 100; (3) Jones admitted that the car shown in the

surveillance recording was his car and that he was in his car the entire evening

of July 9; (4) on that same evening, after the shootings, Officer Howard spotted

Jones’ car in front of a house near the gas station where a man with dreadlocks

(Jones) was sitting on the porch with a man with no shirt on (Samelton); (5)

Officer Howard then saw Samelton and Jones get into Jones’ car and drive

away; (6) Officer Howard then pulled over Jones’ car and saw Jones run away,

attempt to climb a privacy fence, and drop an object; (7) the object Jones

dropped was a gun which ballistics determined had fired the spent shell casings

found at the scene of the gas station; (8) Jones admitted that the gun was his

and that he had the gun with him the entire evening of July 9. This

circumstantial evidence is more than sufficient to prove that Jones was one of

the shooters at the gas station.

[18] The evidence was also sufficient to prove Jones fired the gun with the intent to

kill. “Intent to kill may be inferred from the use of a deadly weapon in a

manner likely to cause death or great bodily 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)), trans. denied. And, “[d]ischarging a weapon in the direction

of a victim is substantial evidence from which the jury could infer intent to kill.”

Id. (citing Fry, 885 N.E.2d at 750). Here, the evidence cited above showed that

Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016 Page 9 of 11 Jones fired a gun several times in the direction of Menyard. The State provided

sufficient evidence to support Jones’ attempted murder conviction.

Aggravated Battery

[19] Pursuant to Indiana Code Section 35-42-2-1.5, to prove that Jones committed

aggravated battery, the State was required to show that he knowingly or

intentionally inflicted injury on Menyard that created a substantial risk of death.

Jones contends that the State failed to provide sufficient evidence that

Menyard’s injury created a substantial risk of death.

[20] “[I]n reviewing a sufficiency claim concerning whether the injuries created a

substantial risk of death, we look to the observable facts, including the nature

and location of the injury, and the treatment provided.” Oeth v. State, 775

N.E.2d 696, 702 (Ind. Ct. App. 2002) (citing Tingle v. State, 632 N.E.2d 345,

354 (Ind. 1994)), trans. denied. However, expert medical testimony is not

required to prove a substantial risk of death existed. Fleming v. State, 833

N.E.2d 84, 88 (Ind. Ct. App. 2005) (citing Wilcher v. State, 771 N.E.2d 113, 117

(Ind. Ct. App. 2002), trans. denied).

[21] Here, the victim testified that the bullet went all the way through his back and

right arm, causing so much bleeding that it “felt like water . . . running down

[his] back.” Tr. at 79. He also testified that his son immediately drove him to

the hospital, where he was treated in the emergency room and kept overnight.

In addition, the State submitted into evidence four pictures of Menyard being

treated in the hospital, including up-close photographs of his still-bleeding

Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016 Page 10 of 11 wounds, and these photographs were published to the jury. In Oeth, we found

similar evidence sufficient to prove the injuries created a substantial risk of

death. Oeth, 775 N.E.2d at 702. The evidence was sufficient to support Jones’

aggravated battery conviction.

[22] Affirmed.

Riley, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A04-1507-CR-913 | May 24, 2016 Page 11 of 11