Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED Feb 14 2012, 9:39 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK collateral estoppel, or the law of the case. of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANA M. QUIRK GREGORY F. ZOELLER Public Defender Attorney General of Indiana Muncie, Indiana ANDREW R. FALK Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
WILLIAM LAMAR BASS, ) ) Appellant-Defendant, ) ) vs. ) No. 18A02-1109-CR-835 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable John M. Feick, Judge Cause No. 18C04-1011-FA-13
February 14, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge William Lamar Bass appeals his convictions for Attempted Murder,1 a class A felony,
and Criminal Recklessness,2 a class C felony. Bass presents the following restated issues for
review:
1. Do Bass’s convictions for attempted murder and criminal recklessness violate the double jeopardy clause in the Indiana Constitution, article 1, section 14?
2. Did the State present sufficient evidence to support his conviction for attempted murder?
We affirm.
The facts favorable to the convictions are that on the evening of October 13, 2010,
Marrece Barnes was at his home when he received a phone call from Bass. He accused
Barnes of telling people that Bass had broken into Barnes’s home the prior week. Barnes
denied making such statements, and Bass eventually ended the conversation stating that he
was coming over to Barnes’s home. Aware that Bass was usually armed, Barnes obtained his
own handgun and put it in his pocket.
That same evening, Stacey Hinton and Brice Jones were visiting at Barnes’s home.
Jones and Barnes remained on the stoop near the front door as Hinton walked to his car to
leave a little after 9:00. Hinton was parked on the other side of the street across from
Barnes’s home. About that time, Bass and his brother rounded the corner on the same side of
the street as Hinton’s car. Words were briefly exchanged between Barnes and Bass, and then
Bass and his brother drew their guns and split up. Bass approached Hinton, who was in the
1 Ind. Code Ann. § 35-41-5-1 (West, Westlaw through 2011 1st Regular Sess.) (attempt statute); Ind. Code Ann. § 35-42-1-1 (West, Westlaw through 2011 1st Regular Sess.) (murder statute). 2 I.C. § 35-42-2-2 (West, Westlaw through 2011 1st Regular Sess.).
2 middle of the street, and Bass’s brother went towards Barnes’s home. Bass and his brother
ordered the three men to the ground.
Hinton pleaded with Bass that he had nothing, but Bass continued to approach with
his gun pointed at Hinton. Bass then began shooting at the unarmed Hinton from about four
to five feet away. Bass shot at him about ten times as Hinton struggled to get away between
his car and another. Hinton was hit by two bullets and sustained life-threatening wounds.
In the meantime, Bass’s brother had moved quickly across the street toward Barnes
and Jones. Barnes initially started going to the ground as demanded, but then drew his
weapon and shot all five rounds. Bass’s brother returned fire as Barnes and Jones fled down
the side of the house.
Immediately thereafter, Bass and his brother met up at the corner across from Barnes’s
house and reloaded their guns. They then walked across the street toward Barnes’s home and
emptied their clips out on the house. Before leaving, Barnes warned, “we’ll be back” and
“this ain’t over with”. Transcript at 137.
The State charged Bass with class A felony attempted murder, class C felony criminal
recklessness, and class A misdemeanor carrying a handgun without a license. Following a
jury trial, Bass was convicted as charged on July 26, 2011. On appeal, Bass challenges only
his felony convictions.
1.
Bass initially argues that his criminal recklessness conviction must be vacated
pursuant to article 1, section 14 of the Indiana Constitution. Specifically, he contends that
there is a reasonable possibility that the evidentiary facts used by the jury to establish the
3 essential element of attempted murder may also have been used to establish the essential
elements of criminal recklessness.
Our Supreme Court has established a two-part test for analyzing state double jeopardy
claims. According to that test, multiple offenses are the same offense in violation of article 1,
section 14, “if, with respect to either the statutory elements of the challenged crimes or the
actual evidence used to convict, the essential elements of one challenged offense also
establish the essential elements of another challenged offense.” Richardson v. State, 717
N.E.2d 32, 49 (Ind. 1999). Bass raises his claim under the actual evidence test. Thus, we
must determine whether there is a reasonable possibility that the evidentiary facts used by the
jury to establish the essential elements of one offense may also have been used to establish
all of the essential elements of the other offense. See Davis v. State, 770 N.E.2d 319 (Ind.
2002); Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002) (“the Indiana Double Jeopardy
Clause is not violated when the evidentiary facts establishing the essential elements of one
offense also establish only one or even several, but not all, of the essential elements of a
second offense”) (emphasis in original).
There is no merit to Bass’s double jeopardy claim, as the State clearly used separate
evidentiary facts to establish each offense. The attempted murder charge was based upon
Bass’s initial actions of walking toward Hinton and firing a handgun directly at him multiple
times, striking him twice. On the other hand, the criminal recklessness charge was based
upon Bass’s subsequent act of reloading his handgun and firing, alongside his brother,
toward Barnes’s home (which was separate from and in the opposite direction of where he
4 shot Hinton).3 We find no double jeopardy violation here.
2.
Bass also challenges the sufficiency of the evidence supporting his attempted murder
conviction. While Bass admits carrying and shooting a 9mm handgun on the night in
question, he directs us to conflicting testimony regarding the shooting and to evidence
concerning the location of the twenty-four shell casings found at the scene. Based upon this
evidence, Bass claims: “What actually happened was that Stacey Hinton got caught in the
cross-fire of the bullets fired between Mareece [sic] Barnes, William Bass and Jamar Bass.”
Appellant’s Brief at 14. Thus, he claims the State failed to establish that he had the specific
intent to kill Hinton.
Our standard of review for challenges to the sufficiency of the evidence is well settled.
When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008).
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 FILED Feb 14 2012, 9:39 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK collateral estoppel, or the law of the case. of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANA M. QUIRK GREGORY F. ZOELLER Public Defender Attorney General of Indiana Muncie, Indiana ANDREW R. FALK Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
WILLIAM LAMAR BASS, ) ) Appellant-Defendant, ) ) vs. ) No. 18A02-1109-CR-835 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable John M. Feick, Judge Cause No. 18C04-1011-FA-13
February 14, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge William Lamar Bass appeals his convictions for Attempted Murder,1 a class A felony,
and Criminal Recklessness,2 a class C felony. Bass presents the following restated issues for
review:
1. Do Bass’s convictions for attempted murder and criminal recklessness violate the double jeopardy clause in the Indiana Constitution, article 1, section 14?
2. Did the State present sufficient evidence to support his conviction for attempted murder?
We affirm.
The facts favorable to the convictions are that on the evening of October 13, 2010,
Marrece Barnes was at his home when he received a phone call from Bass. He accused
Barnes of telling people that Bass had broken into Barnes’s home the prior week. Barnes
denied making such statements, and Bass eventually ended the conversation stating that he
was coming over to Barnes’s home. Aware that Bass was usually armed, Barnes obtained his
own handgun and put it in his pocket.
That same evening, Stacey Hinton and Brice Jones were visiting at Barnes’s home.
Jones and Barnes remained on the stoop near the front door as Hinton walked to his car to
leave a little after 9:00. Hinton was parked on the other side of the street across from
Barnes’s home. About that time, Bass and his brother rounded the corner on the same side of
the street as Hinton’s car. Words were briefly exchanged between Barnes and Bass, and then
Bass and his brother drew their guns and split up. Bass approached Hinton, who was in the
1 Ind. Code Ann. § 35-41-5-1 (West, Westlaw through 2011 1st Regular Sess.) (attempt statute); Ind. Code Ann. § 35-42-1-1 (West, Westlaw through 2011 1st Regular Sess.) (murder statute). 2 I.C. § 35-42-2-2 (West, Westlaw through 2011 1st Regular Sess.).
2 middle of the street, and Bass’s brother went towards Barnes’s home. Bass and his brother
ordered the three men to the ground.
Hinton pleaded with Bass that he had nothing, but Bass continued to approach with
his gun pointed at Hinton. Bass then began shooting at the unarmed Hinton from about four
to five feet away. Bass shot at him about ten times as Hinton struggled to get away between
his car and another. Hinton was hit by two bullets and sustained life-threatening wounds.
In the meantime, Bass’s brother had moved quickly across the street toward Barnes
and Jones. Barnes initially started going to the ground as demanded, but then drew his
weapon and shot all five rounds. Bass’s brother returned fire as Barnes and Jones fled down
the side of the house.
Immediately thereafter, Bass and his brother met up at the corner across from Barnes’s
house and reloaded their guns. They then walked across the street toward Barnes’s home and
emptied their clips out on the house. Before leaving, Barnes warned, “we’ll be back” and
“this ain’t over with”. Transcript at 137.
The State charged Bass with class A felony attempted murder, class C felony criminal
recklessness, and class A misdemeanor carrying a handgun without a license. Following a
jury trial, Bass was convicted as charged on July 26, 2011. On appeal, Bass challenges only
his felony convictions.
1.
Bass initially argues that his criminal recklessness conviction must be vacated
pursuant to article 1, section 14 of the Indiana Constitution. Specifically, he contends that
there is a reasonable possibility that the evidentiary facts used by the jury to establish the
3 essential element of attempted murder may also have been used to establish the essential
elements of criminal recklessness.
Our Supreme Court has established a two-part test for analyzing state double jeopardy
claims. According to that test, multiple offenses are the same offense in violation of article 1,
section 14, “if, with respect to either the statutory elements of the challenged crimes or the
actual evidence used to convict, the essential elements of one challenged offense also
establish the essential elements of another challenged offense.” Richardson v. State, 717
N.E.2d 32, 49 (Ind. 1999). Bass raises his claim under the actual evidence test. Thus, we
must determine whether there is a reasonable possibility that the evidentiary facts used by the
jury to establish the essential elements of one offense may also have been used to establish
all of the essential elements of the other offense. See Davis v. State, 770 N.E.2d 319 (Ind.
2002); Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002) (“the Indiana Double Jeopardy
Clause is not violated when the evidentiary facts establishing the essential elements of one
offense also establish only one or even several, but not all, of the essential elements of a
second offense”) (emphasis in original).
There is no merit to Bass’s double jeopardy claim, as the State clearly used separate
evidentiary facts to establish each offense. The attempted murder charge was based upon
Bass’s initial actions of walking toward Hinton and firing a handgun directly at him multiple
times, striking him twice. On the other hand, the criminal recklessness charge was based
upon Bass’s subsequent act of reloading his handgun and firing, alongside his brother,
toward Barnes’s home (which was separate from and in the opposite direction of where he
4 shot Hinton).3 We find no double jeopardy violation here.
2.
Bass also challenges the sufficiency of the evidence supporting his attempted murder
conviction. While Bass admits carrying and shooting a 9mm handgun on the night in
question, he directs us to conflicting testimony regarding the shooting and to evidence
concerning the location of the twenty-four shell casings found at the scene. Based upon this
evidence, Bass claims: “What actually happened was that Stacey Hinton got caught in the
cross-fire of the bullets fired between Mareece [sic] Barnes, William Bass and Jamar Bass.”
Appellant’s Brief at 14. Thus, he claims the State failed to establish that he had the specific
intent to kill Hinton.
Our standard of review for challenges to the sufficiency of the evidence is well settled.
When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). “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 trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.
Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).
The basis of Bass’s defense at trial was that Barnes was the first to shoot and that Bass
and his brother only returned fire in self-defense. Further, Bass claimed that Hinton, whom
3 Contrary to Bass’s specious argument on appeal, the State was not required to establish which bullet from which gun (Bass’s or his brother’s) actually hit Barnes’s residence in order to avoid double jeopardy.
5 Bass admitted was unarmed, was unfortunately caught in the crossfire. The jury rejected
Bass’s self-serving testimony and theory of defense, which was their prerogative. The jury’s
determination was based upon ample evidence in the record. Most notably, Hinton testified
that Bass was walking toward him and shooting directly at him. Further, an independent
eyewitness4 testified that when Bass and his brother split up, Bass went immediately toward
Hinton. According to the witness, “[Hinton] hit the ground, and [Bass] continuously kept
walking toward him, shooting.” Transcript at 131. Bass was within four or five feet of
Hinton and shooting “directly at him.” Id. at 135.
We reject Bass’s blatant request for us to reweigh the evidence and judge witness
credibility. The State presented sufficient evidence to support the attempted murder
conviction.
Judgment affirmed.
RILEY, J., and MATHIAS, J., concur.
4 The witness lived two houses down from Barnes’s residence and was able to observe Bass and his brother during the entire encounter.