Xavier Wesley Day v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 8, 2020
• Docket: 19A-CR-2997
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 08 2020, 8:40 am

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 Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Xavier Wesley Day, July 8, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2997 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Jeffrey L. Sanford, Judge Trial Court Cause No. 71D03-1809-F1-20

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020 Page 1 of 11 [1] Xavier Wesley Day (“Day”) was convicted after a jury trial of attempted

murder,1 a Level 1 felony, and sentenced to forty years in the Department of

Correction. Day appeals his conviction and raises the following issue for our

review: whether the trial court committed fundamental error when it gave a

final jury instruction for attempted murder requiring the jury to find that Day

acted with the “conscious purpose” of killing and took a substantial step toward

the “intended” crime of murder.

[2] We affirm.

Facts and Procedural History [3] In September 2018, Faith Salinas (“Salinas”), who was then seventeen years

old, made a post on Facebook asking if anyone could show her how to make

marijuana edibles. Tr. Vol. 2 at 66. Alondra Trevino (“Trevino”), who was a

friend of Salinas, responded, and they arranged to meet on September 24, 2018,

to make the edibles together. Id. at 65, 67. Trevino was dating Day at the time,

and although she had told Salinas that she would help her, she and Day had

actually made a plan to rob Salinas of her marijuana instead. Id. at 65-66; Tr.

Vol. 3 at 29-30, 68-71. Trevino and Day knew that Salinas had a gun, and they

were both concerned that she might be armed. Tr. Vol. 3 at 76-77.

1 See Ind. Code §§ 35-42-1-1(1), 35-41-5-1(a).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020 Page 2 of 11 [4] On September 24, 2018, Trevino picked up Salinas at her house, and then

stopped at the Citgo gas station near Salinas’s house, telling Salinas she needed

to get gas and other items. Tr. Vol. 2 at 69-70; Tr. Vol. 3 at 69. Day, Alvin

Sanders (“Sanders”), and Que’lin Jones (“Jones”) parked a couple of blocks

south of the gas station and then walked to the gas station. Tr. Vol. 3 at 19-20,

45-46. On the way to the gas station, Day and Sanders talked about their plan

to get a “twenty sack,” meaning $20 worth of marijuana, without paying for it.

Id. at 22-23, 29-30. At approximately 9:44 p.m., Day, Sanders, and Jones

arrived at the gas station. Id. at 45-46. When Trevino exited her car and went

into the gas station, leaving Salinas sitting in the car, Sanders entered the back

seat of the car and began talking to Salinas. Tr. Vol. 2 at 70-71. Sanders asked

Salinas if she had any marijuana and if she had a “pole,” meaning a gun, and

Salinas began to feel uncomfortable based on his questions and the fact that she

felt he was acting strangely. Id. at 71-72, 83-84. Salinas then saw Day standing

outside the passenger door, pointing a gun at her face, and he demanded, “give

me all your shit.” Id. at 72-73.

[5] Salinas told Day that he would have to kill her to get her stuff and got out of the

car carrying her backpack, which had her marijuana inside. Id. at 73; Tr. Vol. 3

at 7, 55. Day tried to grab the backpack away from Salinas, but she would not

let go of it. Tr. Vol. 2 at 73; Tr. Vol. 3 at 79. Day shot Salinas, and she fell to the

ground. Tr. Vol. 2 at 74; State’s Exs. 6, 6A. Day then took a couple of steps

toward Salinas and shot her several more times. Tr. Vol. 2 at 74-75; Tr. Vol. 3 at

28, 71; State’s Exs. 6, 6A. While Day was shooting her, Salinas was able to pull

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020 Page 3 of 11 her gun out of her jacket pocket and fire it at Day. Tr. Vol. 2 at 74-75, 87; State’s

Exs. 6, 6A. Day and Sanders fled the scene on foot, and Trevino got into her

car and drove away, leaving Salinas lying on the ground suffering from several

gunshot wounds. Tr. Vol. 3 at 45-46, 71.

[6] Police were dispatched to the area around 9:46 p.m. on a report of nine shots

fired. Tr. Vol. 2 at 19-20, 31-32. When the police arrived, they found Salinas

lying on the ground barely breathing, unable to speak, and suffering from

multiple gunshot wounds. Id. at 20-21, 32. The police recovered six spent nine-

millimeter casings and one spent .32 caliber casing at the scene. Id. at 55. The

.32 caliber casing had been fired by Salinas’s gun, which was subsequently

recovered from a trash can at the gas station, and the nine-millimeter casings

were all fired by the same gun, which was not Salinas’s gun. Id. at 54-55, 75;

Tr. Vol. 3 at 47-48. The police were able to obtain surveillance video from the

gas station that had captured the shooting. Police also recovered Salinas’s

backpack, which had two bullet holes in it. Tr. Vol. 2 at 54, 61-62; Tr. Vol. 3 at

51-52; State’s Exs. 6, 6A. The police also obtained GPS data from a device

carried by Day that showed him approaching the gas station between 9:33 p.m.

and 9:38 p.m., at the gas station from 9:44 p.m. to 9:46 p.m., and half a block

south of the gas station at 9:47 p.m. Tr. Vol. 3 at 45-46; State’s Exs. 57-64.

[7] Salinas was taken to the hospital, suffering from multiple gunshot wounds to

her chest, back, side, and arm, which required emergency surgery. Tr. Vol. 2 at

75, 76; Tr. Vol. 3 at 9, 35. At the hospital, she was able to tell the officers that

Day was the person who had shot her. Tr. Vol. 2 at 77-78; Tr. Vol. 3 at 10, 35- Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020 Page 4 of 11 36. At the hospital, it was determined that Salinas had been shot in the lung,

liver, and spleen, suffered from a collapsed lung, and had to have her spleen

removed. Tr. Vol. 2 at 76-77. She also suffered injury to the vertebrae in her

back that left her paralyzed from the waist down and confined to a wheelchair.

Id. at 67, 76-77.

[8] The State charged Day with Level 1 felony attempted murder and Level 2

felony attempted robbery resulting in serious bodily injury. Appellant’s Conf.

App. Vol. 2 at 4, 74. A jury trial was held on October 21 and 22, 2019. Id. at

162. At the conclusion of the trial, the trial court instructed the jury as to the

elements of the charged crimes, and the instruction for the attempted murder

charge read:

To convict the defendant of Count I, Attempted Murder, a Level 1 felony, the State must have proven each of the following elements beyond a reasonable doubt:

1. The defendant, Xavier Wesley Day,

2. acting with the conscious purpose of killing Faith Salinas,

3. did touch Faith Salinas with a deadly weapon, to-wit: shot Faith Salinas,

4. which was conduct constituting a substantial step toward the commission of the intended crime of killing Faith Salinas.

Id. at 98. Day did not object to the instruction and told the trial court that its

instructions were “fine.” Tr. Vol. 3 at 59. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020 Page 5 of 11 [9] The State, in its closing argument regarding the attempted murder charge, told

the jury that “conscious objective” means doing something intentionally and on

purpose. Id. at 92. The State asked the jury, “how do we know it was on

purpose?” and highlighted the evidence that immediately after Salinas told Day

“you’re going to have to kill me to take my stuff,” he shot her several times at

point blank range. Id. The State later reiterated that the evidence that Day

shot Salinas six times in the chest and back and then left her to die

demonstrated that Day wanted to kill Salinas. Id. at 93-94.

[10] In his closing argument, Day’s counsel argued that the State had failed to prove

both his identity as the shooter and his intent to kill. Id. at 96-98. As to intent,

counsel advised the jury that the State needed to prove “specific intent” and

that what the jury saw in the video “is a reaction. It’s not a plan. It’s not a

conscious objective. It is simply reacting to the situation that the shooter found

himself in.” Id. at 98-99. Day’s counsel argued that there was no “conscious

objective” to kill Salinas, that Day’s “objective” was to “snatch some weed”

and get away safely, and that this “objective” continued through the incident.

Id. at 99-100.

[11] In its rebuttal argument, the State argued that it “defie[d] logic” that someone

could point a gun at another and fire it at the person’s chest and back at close

range and not “intend to kill them.” Id. at 102. The State alleged that Day

“intended to kill her” and concluded its argument by emphasizing that, “when

[Day] took those two steps toward [Salinas] and started firing at her, raising the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020 Page 6 of 11 gun and pointing it at her and shooting at her point blank and then leaving her

to die, absolutely that’s conscious intent.” Id. at 102-03.

[12] The jury found Day guilty as charged. Id. at 116. The trial court entered

judgment only as to the Level 1 felony attempted murder conviction due to

double jeopardy concerns and sentenced Day to forty years in the Department

of Correction. Id. at 127-28; Appellant’s Conf. App. Vol. 2 at 140. Day now

appeals.

Discussion and Decision [13] Day argues that the trial court erred in instructing the jury. The manner of

instructing a jury is left to the sound discretion of the trial court. White v. State,

25 N.E.3d 107, 126 (Ind. Ct. App. 2014) (citing Albores v. State, 987 N.E.2d 98,

99 (Ind. Ct. App. 2013), trans. denied), trans. denied, cert. denied, 136 S. Ct. 595

(2015). “When reviewing a trial court’s decision to refuse or give jury

instructions, this Court ‘considers: (1) whether the instruction correctly states

the law; (2) whether there is evidence in the record to support the giving of the

instruction; and (3) whether the substance of the tendered instruction is covered

by other instructions which are given.’” Id. (quoting Watson v. State, 972

N.E.2d 378, 383 (Ind. Ct. App. 2012)). Day challenges the attempted murder

instruction given to the jury, which provided:

To convict the defendant of Count I, Attempted Murder, a Level 1 felony, the State must have proven each of the following elements beyond a reasonable doubt:

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020 Page 7 of 11 1. The defendant, Xavier Wesley Day,

2. acting with the conscious purpose of killing Faith Salinas,

3. did touch Faith Salinas with a deadly weapon, to-wit: shot Faith Salinas,

4. which was conduct constituting a substantial step toward the commission of the intended crime of killing Faith Salinas.

Appellant’s Conf. App. Vol. 2 at 98.

[14] Day did not object to this instruction at trial. Generally, where a defendant

fails to object to a jury instruction or fails to tender alternate instructions, the

defendant’s claim of error on appeal is waived. Barthalow v. State, 119 N.E.3d

204, 211 (Ind. Ct. App. 2019). However, we will consider a defendant’s

argument that the error constituted fundamental error. Staley v. State, 895

N.E.2d 1245, 1248 (Ind. Ct. App. 2008), trans. denied. “This exception to the

general rule requiring a contemporaneous objection is narrow, providing relief

only in ‘egregious circumstances’ that made a fair trial impossible.” Pattison v.

State, 54 N.E.3d 361, 365 (Ind. 2016). “An error may be fundamental and thus

not subject to waiver, if it is a ‘substantial blatant violation of basic principles.’”

Barthalow, 119 N.E.3d at 211 (quoting Moreland v. State, 701 N.E.2d 288, 294

(Ind. Ct. App. 1998) (internal quotation omitted)). The error must be so

prejudicial to the rights of the defendant as to make a fair trial impossible. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020 Page 8 of 11 [15] Day argues that the trial court committed fundamental error in instructing the

jury as to the charge of attempted murder. He contends that the instruction

given containing the elements of the crime was erroneous because it did not

inform the jury that the State must prove beyond a reasonable doubt that “the

defendant, with the specific intent to kill the victim engaged in conduct

constituting a substantial step toward such killing.” Appellant’s Br. at 8 (citing

Rosales v. State, 23 N.E.3d 8 (Ind. 2015)). Day asserts that, instead of using the

language “specific intent to kill,” the trial court’s instruction used “conscious

purpose,” which constituted fundamental error. He maintains that, because the

Indiana Pattern Jury Instruction for attempted murder uses the language

“specific intent to kill,” it was fundamental error to not use such language.

[16] In Spradlin v. State, 569 N.E.2d 948 (Ind. 1991), the Indiana Supreme Court

determined that an attempted murder instruction “which purports to set forth

the elements which must be proven in order to convict of the crime of

attempted murder must inform the jury that the State must prove beyond a

reasonable doubt that the defendant, with the intent to kill the victim, engaged

in conduct which was a substantial step toward such killing.” Id. at 950. A jury

should not be instructed that a “knowing” mens rea is sufficient to establish

guilt of attempted murder. Clay v. State, 766 N.E.2d 33, 36 (Ind. Ct. App.

2002). Error in an attempted murder instruction does not rise to the level of

fundamental error where either 1) the instructions as a whole sufficiently inform

the jury of the requirement of intent to kill; and/or 2) the intent of the

perpetrator was not a central issue at trial. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020 Page 9 of 11 [17] Here, the instruction at issue did not contain the term “knowingly” at all and

instructed the jury that it had to find Day acted “with the conscious purpose of

killing” Salinas and that he engaged in a substantial step toward his “intended

crime of killing” Salinas. Appellant’s Conf. App. 2 at 98. In Clay, this court held

that the meaning of the phrase “conscious purpose” is equivalent to the mens

rea of “specific intent” and that there is no functional difference between an

instruction that uses the language “conscious purpose” to kill and one that uses

the language “specific intent” to kill because the terms have the same meaning.

766 N.E.2d at 37; see also Elliott v. State, 786 N.E.2d 799, 802 (Ind. Ct. App.

2003) (same). Therefore, the use of the phrase “conscious purpose” in an

attempted murder instruction does not constitute fundamental error because it

has the same meaning as “specific intent” and informs the jury that the State

must prove that the defendant intended to kill the victim. See Elliott, 786

N.E.2d at 802; Clay, 766 N.E.2d at 37.

[18] The jury instruction challenged by Day in the present case is virtually identical

to the language found to be proper in both Clay and Elliott. The attempted

murder instruction given by the trial court informed the jury that the State had

to prove that Day acted “with the conscious purpose of killing” Salinas and that he

shot her, which was conduct that constituted “a substantial step toward the

commission of the intended crime of killing” Salinas. Appellant’s Conf. App. Vol. 2

at 98 (emphasis added). This jury instruction, as a whole, adequately informed

the jury that the State was required to prove that Day had the specific intent to

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020 Page 10 of 11 kill Salinas. The trial court did not commit fundamental error when it gave the

jury instruction at issue.

[19] Affirmed.

Najam, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2997 | July 8, 2020 Page 11 of 11