Robert L. Walp v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 3, 2015
• Docket: 53A01-1409-CR-409
• Status: Published

Opinion

MEMORANDUM DECISION Jun 03 2015, 10:39 am 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 establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Frederick A. Turner Gregory F. Zoeller Bloomington, Indiana Attorney General of Indiana

Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert L. Walp, June 3, 2015

Appellant-Defendant, Court of Appeals Case No. 53A01-1409-CR-00409 v. Appeal from the Monroe Circuit Court The Honorable Kenneth G. Todd, State of Indiana, Judge Appellee-Plaintiff Cause No. 53C03-1305-FA-00497

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-409| June 3, 2015 Page 1 of 6 Case Summary [1] Robert L. Walp (“Walp”) appeals his convictions for three counts of Attempted

Murder, Class A felonies. 1 He presents the sole issue of whether the evidence is

insufficient to support his convictions because the State failed to prove that he

acted with specific intent to kill. We affirm.

Facts and Procedural History [2] During the morning of May 14, 2013, Michael Patton (“Patton”) was doing

yard work when Walp moved his lawn mower into Patton’s path. Patton

stopped work and the two men engaged in a lengthy conversation. At some

point, Walp began to share his belief that their mutual neighbors, John and

Kimberly McGuire and their children (collectively, “the McGuires”), were part

of a terrorist cell “hiding waiting to start to wreak havoc on our county and our

town, county, city.” 2 (Tr. 313.) Walp explained that he had, during the

previous weekend, laid down in woods beside the McGuire property, and

waited with a rifle to “pick them off like chickens when they started to go in the

house.” (Tr. 316.) Unable to see in the dark, Walp had temporarily abandoned

1 Ind. Code §§ 35-41-5-1, 35-42-1-1. Pursuant to Indiana Code Section 35-41-5-1(a), the offense of Attempted Murder is now a Level 1 felony. We refer to the version of the Attempt statute in effect at the time of Walp’s offenses. 2 It appears that the McGuires occasionally butchered small livestock for food. At some point, Walp observed conduct that he determined to be “ritual sacrifice.” (Tr. 387.) He ostensibly believed that the McGuires displayed sheep or goat skins for religious purposes and had cut the throat of animals to drink their blood.

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-409| June 3, 2015 Page 2 of 6 his plan. However, he insisted to Patton that the McGuires were “going to die”

and Walp would “take care of” the matter that evening or the next. (Tr. 317.)

[3] Patton told Walp that he had to finish his yard work and run errands. Once

Walp was encouraged to leave, Patton and his wife, Christina, went to a nearby

Indiana State Police post and reported Walp’s threats. Patton then arranged for

another neighbor to warn the McGuires of threats against them.

[4] The McGuires decided to follow through with plans to go to R.M.’s choir

concert. 3 Around 6:15 that evening, the adults and one of their children were in

the garage preparing to leave when John McGuire heard the approach of a

large vehicle. John took a few steps out of the garage to investigate and saw

Walp driving a large white dump truck with “Bob the Builder” spray painted on

it. As the McGuires sought refuge in the house, Walp exited his vehicle and

began shooting.

[5] Walp shot through a sliding glass door to the sunroom and stepped through the

opening. Once inside the sunroom, he shot into the basement. He entered the

main residence and re-appeared outside approximately one minute later. He

then fired two shots into an upstairs window. John, having loaded his shotgun,

called out to Walp that he had a gun. Walp got into his vehicle and left.

3 R.M. is the eldest of the McGuire children.

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-409| June 3, 2015 Page 3 of 6 Christina, who had observed Walp’s actions from her bathroom window, called

9-1-1.

[6] The State charged Walp with three counts of Attempted Murder. At the

conclusion of a jury trial, Walp was convicted as charged. On August 28, 2014,

the trial court sentenced Walp to thirty years imprisonment on each count. The

sentences are to be served concurrently, providing for an aggregate sentence of

thirty years. Walp now appeals.

Discussion and Decision [7] Walp contends that the State failed to present sufficient evidence to sustain his

convictions for Attempted Murder. According to Walp, the State was required

to prove that he knew the house was occupied when shots were fired, and the

State failed to do so.

[8] In order to convict Walp of Attempted Murder, the State was required to prove

beyond a reasonable doubt that Walp, acting with the specific intent to commit

murder, engaged in an overt act that constituted a substantial step toward the

commission of the crime. Davis v. State, 558 N.E.2d 811, 812 (Ind. 1990).

Walp does not deny that he committed the overt act of shooting into the

McGuire residence. Rather, he claims the State failed to prove beyond a

reasonable doubt that he intended to kill the McGuires as opposed to “shooting

up their house.” (Appellant’s Br. at 7.)

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-409| June 3, 2015 Page 4 of 6 [9] When reviewing the sufficiency of the evidence to support a conviction, we will

consider only the probative evidence and reasonable inferences supporting the

verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm the

conviction unless no reasonable fact-finder could find the elements of the crime

proven beyond a reasonable doubt. Id. The requisite intent to commit murder

may be inferred from the intentional use of a deadly weapon in a manner likely

to cause death. Davis, 558 N.E.2d at 812. Discharging a weapon in the

direction of a victim is substantial evidence from which a jury can infer intent to

kill. Leon v. State, 525 N.E.2d 331, 332 (Ind. 1988).

[10] Walp told his neighbor of his plan to kill the McGuire family, who Walp

labelled terrorists. He claimed to have laid in wait to kill them on an earlier

occasion, but his plan was foiled because of the family’s late return and the

darkness. On May 14, 2013, Walp took his shotgun and drove his dump truck

to the McGuire residence. Walp exited his vehicle as the McGuires fled from

the garage into the house. According to Christina, she had seen the McGuires

run into the house and “Walp had fired the first shot into their residential door

as it was closing.” (Tr. 346.) This testimony would support an inference that

Walp, like Christina, could see that the McGuires were fleeing.

[11] Kimberly also provided testimony from which a factfinder could infer that

Walp had tracked her movements. She testified that, at one point, she ran

upstairs to lock a door and “that’s when the shots started firing up at me

through that upstairs.” (Tr. 278.) She had seen Walp looking up and his eyes

were pointed in her “general direction.” (Tr. 287.) After the shooting, Walp

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-409| June 3, 2015 Page 5 of 6 explained his conduct and motivation to police officers. He claimed to have

“shot those people” because he disagreed with the lack of police response to

terrorists. (Tr. 376.) He explained to Detective Jennifer Allen that he had

loaded his shotgun with “six in a magazine and one [in] the chamber” and gone

to the McGuire property with the desire to “blow them away.” (Tr. 386-87.)

[12] Considering Walp’s conduct and statements before, during, and after the

shooting, there is sufficient evidence from which the jury could infer that Walp

intended to kill the three victims and not just cause property damage when he

fired multiple shots into the residence.

[13] Affirmed.

Riley, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-409| June 3, 2015 Page 6 of 6