Luvelle Deshawn Neal v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 6, 2020
• Docket: 19A-CR-1698
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 06 2020, 10:26 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark S. Lenyo Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Myriam Serrano-Colon Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Luvelle Deshawn Neal, April 6, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1698 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1803-F1-5

Mathias, Judge.

[1] Following a jury trial, Luvelle Deshawn Neal (“Neal”) was convicted of

attempted murder as a Level 1 felony and dealing in cocaine as a Level 3

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020 Page 1 of 9 felony. Neal appeals and contends that there was insufficient evidence to

sustain his convictions.

[2] We affirm.

Facts and Procedural History [3] On March 22, 2018, Neal received a call from Darrell Burger (“Darrell”), to

whom he had sold cocaine and heroin in the past. Darrell’s brother Gage

Burger (“Gage”) wanted to buy drugs from Neal. The men agreed to meet that

evening in the parking lot of a downtown South Bend bar, Frank’s Place. The

Burger brothers arrived in a Mercury Grand Marquis that was borrowed from a

neighbor. Darrell was driving, and Gage was the front seat passenger. Gage was

armed with a Glock firearm and a debit card, but no cash. He also brought five

sets of digital scales commonly used to weigh controlled substances during drug

transactions.

[4] Shortly after 6 p.m., Neal arrived with a man named Larry Harris (“Harris”).

Neal exited their vehicle and got into the backseat of the Grand Marquis,

behind Gage. He immediately grabbed Gage by the back of his neck and

pointed a gun at the back of Gage’s head; Darrell demanded that Neal get out

of the car and started the engine. Neal briefly pointed the gun at Darrell and

then struck Gage on the head with the butt of the gun. Meanwhile, Gage had

reached for his own weapon and put it under his leg.

[5] Gage opened the car door and leapt from the vehicle; Gage and Neal

exchanged fire, and Neal followed Gage out of the vehicle. Darrell, still in the Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020 Page 2 of 9 driver’s seat, heard multiple gunshots but did not know whether his brother or

Neal fired first. Darrell pulled out of the parking lot, circled the block, and came

back to find Gage lying on the ground and bleeding from his neck. Darrell

drove away. Harris, who had been waiting in his vehicle, heard the gunshots

and saw the Grand Marquis drive away. Harris saw Neal holding his chest and

waving him off; Harris pulled out of the parking lot and circled the area until he

found Neal, picked him up, and took him to a hospital.

[6] Law enforcement quickly arrived at the scene. South Bend Police Department

Officer Russell Lupica found Gage lying motionless and bleeding in the parking

lot. He recovered a gun on the ground near Gage’s knee and performed CPR

until medics arrived to transport Gage to a hospital. Detective Chris

Kronewitter was assigned to investigate the shooting; he went to Memorial

Hospital, where both Neal and Gage were being treated for their injuries.

Detective Kronewitter spoke to Neal at the hospital that night and again the

next day, March 23. Neal admitted that he was at Frank’s Place to sell drugs to

Gage and that he had fired about five shots at Gage. He described hiding

cocaine and his handgun under a trashcan in the parking lot before fleeing.

Neal also admitted that he had been dealing marijuana and cocaine for two and

a half years and had been carrying a gun for two years. Gage’s injuries

prevented Detective Kronewitter from interviewing him at the time.

[7] Law enforcement recovered Neal’s gun and various shell casings and bullet

fragments from the Frank’s Place parking lot. The shell casings were all .40

caliber but were of two different manufacturer brands. A crime laboratory

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020 Page 3 of 9 firearm examiner determined that four shell casings were fired from Gage’s gun

and seven shell casings were fired from Neal’s gun. Law enforcement also

recovered video surveillance of the shooting from Frank’s Place. Darrell was

tracked to Mishawaka, where his fiancée hid the wallet, cell phone, and debit

card that Gage left behind in the Grand Marquis in an outdoor grill. Darrell

returned the vehicle to his neighbor; its front driver’s side window and back

passenger’s side window were shattered, and there were several bullet holes

inside the vehicle. On Darrell’s suggestion, the neighbor reported the car stolen,

but later admitted that the report was false and she had allowed Darrell to

borrow the car.

[8] On March 26, 2018, Neal was charged with Level 1 felony attempted murder,

Level 3 felony aggravated battery, Level 3 felony attempted armed robbery, and

Level 5 felony dealing in cocaine. Following a jury trial, on May 15, 2019, Neal

was found guilty of attempted murder, aggravated battery and dealing in

cocaine, and not guilty of attempted armed robbery. Because the same facts and

circumstances supported both the attempted murder and aggravated battery

offenses, the trial court entered judgment of conviction only for attempted

murder and dealing in cocaine. A sentencing hearing was held on June 26,

2019; Neal was sentenced to twenty-five years in the Department of Correction

for attempted murder and three years for dealing in cocaine, to be served

concurrently. This appeal followed.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020 Page 4 of 9 Discussion and Decision [9] On appeal, Neal contends that the evidence is insufficient to support his

convictions for dealing in cocaine and attempted murder. When reviewing

challenges to the sufficiency of evidence, we do not reweigh the evidence nor do

we reassess the credibility of witnesses. Jones v. State, 783 N.E.2d 1132, 1139

(Ind. 2003). We look only to the probative evidence supporting the judgment

and to the reasonable inferences that may be drawn from the evidence in

determining whether a reasonable trier of fact could conclude that the

defendant was guilty beyond a reasonable doubt. Id. A verdict may be sustained

based on circumstantial evidence alone if that circumstantial evidence supports

a reasonable inference of guilt. Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000).

Reversal is only appropriate when no reasonable trier of fact could find the

elements of the crime proven beyond a reasonable doubt. Drane v. State, 867

N.E.2d 144, 146 (Ind. 2007).

I. Dealing in Cocaine

[10] Neal argues that the evidence used to support his conviction for dealing in

cocaine was insufficient because the State did not present evidence that he

actually possessed cocaine. “A person who knowingly or intentionally

possesses, with intent to deliver cocaine . . . commits dealing in cocaine . . . a

Level 5 felony.” Ind. Code § 35-48-4-1. In order to convict Neal of dealing in

cocaine, the State was required to prove that Neal knowingly possessed cocaine

with the intent to deliver the cocaine. See id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020 Page 5 of 9 [11] Neal is correct that the State did not offer direct, physical evidence in the form

of the cocaine that Neal intended to sell to Gage; however, circumstantial

evidence of possession with intent to deliver is sufficient to support the

conviction. See Stokes v. State, 801 N.E.2d 1263, 1272 (Ind. Ct. App. 2004)

(affirming conviction for dealing in cocaine based on evidence from which jury

could reasonably infer defendant possessed cocaine), trans. denied. On appellate

review, such evidence does not have to overcome every reasonable hypothesis

of innocence, but need only generate a reasonable inference of guilt. Mills v.

State, 512 N.E.2d 846, 848 (Ind. 1987).

[12] The State presented evidence that Neal met the Burger brothers after Darrell

called Neal and relayed Gage’s request to purchase drugs. Darrell called Neal

because Neal had sold him cocaine and heroin in the past. The nature of their

relationship was not disputed by defense counsel at trial. Darrell testified that

Gage wanted to purchase heroin for $1400. Detective Kronewitter, who

interviewed Neal in the hospital immediately after the shooting, testified that

Neal explained he had been “going to [sell] twenty grams of cocaine for $1300”

and had been robbed. Tr. Vol. IV, p. 32. Neal also told Detective Kronewitter

where his gun was located.

[13] Neal admitted that his reason for meeting the Burger brothers was to sell

cocaine and that cocaine was in his pocket at the time of their meeting. Ex.

Vol., State’s Ex. 223. Neal also admitted to abandoning the drugs under a

trashcan with his gun before fleeing the scene. Indeed, based on Neal’s

information, law enforcement recovered the gun that he hid under a trashcan,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020 Page 6 of 9 but they did not discover cocaine or other drugs under the trashcan. Neal

argues that the evidence was insufficient to support his conviction because

“[no]one ever saw any cocaine.” Appellant’s Br. at 18. The statutory elements

of the offense however, do not include physical recovery of the controlled

substance in question; that is to say, nothing precludes conviction for dealing in

cocaine if the evidence presented—including circumstantial evidence—and

reasonable inferences that can be drawn from the evidence are sufficient to find

a defendant guilty beyond a reasonable doubt. Here, the jury could reasonably

infer, based on Neal’s own admissions and on the circumstantial evidence

presented, that he knowingly and intentionally possessed cocaine with the

intent to deliver and sell it to Gage for $1300. Accordingly, we find that this

evidence was sufficient to support the jury’s determination that Neal possessed

cocaine with the intent to deliver.

II. Attempted Murder

[14] Neal also argues that the evidence used to support his conviction for attempted

murder was insufficient because the State did not present evidence that he had

the requisite specific intent to kill. To convict Neal of attempted murder, the

State was required to prove that Neal “acted with the specific intent to kill and

that he engaged in conduct constituting a substantial step toward the killing of”

Gage. See Gall v. State, 811 N.E.2d 969, 975 (Ind. Ct. App. 2004); I.C. § 35-42-1-

1; I.C. § 35-41-5-1. Where typically, the culpability requirement for the attempt

of a crime is that of the specific crime attempted, for convictions of attempted

murder our supreme court “has emphasized the importance of requiring specific

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020 Page 7 of 9 intent to kill . . . despite [] the culpability requirement for murder includ[ing] the

lesser standard of ‘knowingly.’” Perez v. State, 872 N.E.2d 208, 211 (Ind. Ct.

App. 2007), trans. denied.

[15] Specific intent to kill “may be inferred from the intentional use of a deadly

weapon in a manner likely to cause death.” Reese v. State, 939 N.E.2d 695, 702

(Ind. Ct. App. 2011), trans. denied. “Discharging a weapon in the direction of a

victim is substantial evidence from which a jury can infer intent to kill.” Id.

[16] Here, Neal admitted to Detective Kronewitter that he was armed with a gun

when he arrived at Frank’s Place, and a gun matching his description was later

recovered from the scene. Darrell’s testimony was that Neal pointed a weapon

at Gage’s head immediately upon entering Darrell’s vehicle, and then Neal

struck Gage on the head with the butt of the gun. Neal admitted to Detective

Kronewitter that he fired his weapon several times; ballistic evidence showed

that Neal fired at least seven times based on the recovery of seven shell casings

that matched the gun found at the scene. Evidence was also presented that

Gage—who was unable to testify at trial due to the severity of his injuries—

received an injury to his head, above his eye, with characteristics of a bullet

wound. Gage was also shot above his waistline on the right side of his body.

[17] The evidence presented, including Neal’s own admissions, established that Neal

“deliberately used a deadly weapon in a manner likely to cause death or serious

injury.” See Bethel v. State, 730 N.E.2d 1242, 1245 (Ind. 2000). He deliberately

pointed and fired his gun at Gage in a manner likely to cause injury or death to

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020 Page 8 of 9 Gage. Thus, the evidence presented was sufficient for a jury to reasonably

conclude Neal acted with the specific intent to kill Gage and that shooting Gage

constituted a substantial step toward doing so.

Conclusion [18] The evidence presented was sufficient to sustain Neal’s convictions for dealing

in cocaine and attempted murder. Because the jury could reasonably find the

elements of each offense proved beyond a reasonable doubt, we affirm the

judgment of the trial court.

[19] Affirmed.

Kirsch, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1698 | April 6, 2020 Page 9 of 9