Court of Appeals of Indiana | Memorandum Decision 71A05

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### MEMORANDUM DECISION 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.
A TTORNEY FOR A PPELLANT Philip R. Skodinski South Bend, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill , Jr. Attorney General of Indiana Majorie Lawyer

- Smith Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Michael J. Smith , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. September 5, 2017 Court of Appeals Ca se No. 71A05

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Mathias , Judge .
[1] After a jury trial in St. Joseph Superior Court, Michael J. Smith (“Smith”) was convicted of one count of Level 1 felony attempted murder and three counts ofCourt of Appeals of Indiana | Memorandum Decision 71A05

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Leve l 5 felony criminal recklessness. In this appeal, Smith claims the eviden ce was insufficient to support his conviction for attempted murder and that the trial court abused its discretion by refusing tendered self

- defense jury instruction.

[2] We affirm.


### Fact s and Procedural Posture

[3] Around 2:30 am on August 1, 2015, three vehicles pulled in to the Always Open gas station located at the northwest corner of Lafayette and LaSalle streets (“the Intersection”) in South Bend , Indiana . First to pull in was a lime gree n GMC Suburban driven by Stephen John son (“Stephen”). Stephen’s brother Justin Sharp (“Sharp”) sat in the passenger seat , and a friend Marcus Harris (“Harris”) sat behind Justin. Following the Suburban was a tan Chevy Tahoe driven by Bryant Johnson 1 (“Bryant”). Finally, a white Mitsubishi Lancer driven by Herneisha Becton (“Becton”) entered the gas station . Ashley Irving (“Irving”) sat in the passenger seat of the Lancer, while Michael Smith (“Smith”), Bryant’ s brother, sat in the back seat.

[4] Stephen exited the Suburban and entered the gas station for about ten minutes while Sharp and Harris stayed inside the vehicle . During this time, the Tahoe and Lancer were parked off to the side in the gas station lot

. Bryant called

1 There is no indication in the record that Stephen Johnson and Bryant Johnson are related.Court of Appeals of Indiana | Memorandum Decision 71A05

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Becton who put the call on spe aker. Becton, Irving, and Smith listened as Bryant asked, “ was that the guy? ” Tr. Vol. II, p. 147. Smith responded, “if that was him, then we need to handle business.” Id

. at 148

.
[5] Stephen returned to the Suburban and as he began to drive out of the gas station and head south on Lafayette, he noticed that the Tahoe pulled out at the same time , so he stopp ed and let the Tahoe exit first. The Tahoe driven by Bryant made a right

- hand turn out of the gas station , pulled up to the Intersection , and stopped at the light in the right

- hand lane. The Suburban driven by Stephen pulled up next to the Tahoe in the left

- hand turn lane. The Lancer driven by Becton pulled up directly behind the Suburban.

[6] At this point, Bryant , the dri ver of the Tahoe, rolled down his window and fired six shots into the passenger side of the Suburban before speeding off to the right, heading west on LaSalle

. Stephen , attempting to flee, turned hard to the left , but due to th e sharp turn and the size of the wheel rims on the Suburban , the vehicle momentarily became immobile

. He was also leaning out of the vehicle attempting to avoid the gunfire. T he Becton

- driven Lancer then entered the intersection , and once there , Smith fired five shots at the rear of t he Suburban out of the Lancer’s driver side, back

- passenger window

. The second round of gunfire spurred Stephen to fully re

- enter the Suburban, correct the wheels, and drive off east on LaSalle

. The Becton

- driven Lancer followed the Bryant

- driven Tahoe to Bryant’s sister’s home where Smith stated , “I think I killed him.” Id.
at 154.Court of Appeals of Indiana | Memorandum Decision 71A05

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[7] Stephen, realizing both he and his brother had been shot, quickly turned the Suburban around and returned to the gas station . Sharp , who was sitting in the passenger seat, had been shot multiple times , and he was pronounced dead at the scene. Stephen suffered a bullet wound to his right shoulder and Harris was unhurt.

[8] On September 2, 2015, the State charged Smith in three counts: Count I, Level 5 felony criminal recklessnes s against Harris; Count II, Level 5 felony criminal recklessness against Stephen; and Count III, Level 5 felony criminal recklessness against Sharp. On May 16, 2016, the State added Count IV, Level 1 felony attempted murder against Stephen. A three

- day jur y trial commenced on June 14, 2016

. P rior to final arguments , Smith requested a jury instruction for self

- defense. After consideration, the trial court refused to give the offered instruction.

[9] The jury found Smith guilty on all four counts. On July 19, 20 16 , the court merged Count II and Count IV and sentenced Smith to 38 years executed in the department of corrections for attempted murder, 5 years executed in the department of corrections for criminal recklessness to run consecutively , and a 5

- year suspen ded sentence to probation following release. Smith now timely appeals.Court of Appeals of Indiana | Memorandum Decision 71A05

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### Discussion and Decision

[10] Smith presents two issues for our review: whether the evidence was sufficient to support his conviction for attempted murder; and whether the trial court abused its discretion by refusing to give the self

- defense instruction to the jury

. 

### The Evidence was Sufficient to Support Smith’s Conviction
[11] When reviewing a claim of insufficient evidence to sustain a conviction, we consider only the probative evidence a nd reasonable inferences supporting the verdict. Jackson v. State , 50 N.E.3d 767, 770 (Ind. 2016). It is the jury’s role, not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id . We w ill affirm the conviction unless no reasonable fact

- finder could have found the elements of the crime proven beyond a reasonable doubt. Id

.
[12] For attempted murder, t he State needed to prove, beyond a reasonable doubt, that Smith engaged in conduct constitut ing a substantial step toward intentionally killing Stephen

. See Ind. Code § § 35

- 41

- 5

- 1, 35

- 42

- 1

- 1

. Our courts have consistently “ held that intent to commit murder may be inferred from the use of a deadly weapon in a manner likely to cause death or serious bodily injury.” Booker v. State , 741 N.E.2d 748, 755 (Ind. Ct. App. 2000) (emphasis in original) (citing Chapman v. State , 719 N.E.2d 1232, 1234 (Ind. 1999))

. The use of a deadly weapon on its own may not suffice to satisfy the specific intent requirement, however , “the trier of fact may infer that the defendant acted with conscious objective to kill from the circumstances surrounding the deliberateCourt of Appeals of Indiana | Memorandum Decision 71A05

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use” of the deadly weapon. Id. at 756. Discharging a weapon in the d irection of a victim is substantial evidence from which a jury could infer a specific intent to kill. Corbin v. State , 840 N.E.2d 424, 429 (Ind. Ct. App. 2006) (citing Leon v. State , 525 N.E.2d 331, 332 (Ind. 1988) )

.
[13] In Perez v. State , the d efendant fired three to five rounds out of his moving Acura towards a Chevy Malibu. 8 72 N.E.2d 208, 210 (Ind. Ct. App. 2007), trans. denied . After the shots were fired, the d efendant discussed the shooting and told others he was sure he had hit the car. Id. On appeal, th e d efendant argued that there was insufficient evidence to show he had intended to kill the driver of the Malibu. Id. at 212. In Perez , we upheld the attempted murder conviction finding there was substant ial evidence for the jury to conclude the d efendant’s conscious objective was to kill when he fired at the moving vehicle

. Id. at 213.

[14] Perez is analogous to the situation before us here. Smith contends that the shots he fired at the Suburban were not likely to result in murder because the vehicles were traveling in opposite directions. Appellant’s Br. at 8

– 9. However, the record does not support this argument, nor would this fact be dispositive if it did. While all three vehicles were at the gas station, and just after Stephen exited the Suburban, B ryant made a phone call to Becton in the Lancer asking, “was that the guy?” Tr. Vol. II , p. 147. Smith then responded, “ if that was him, then we need to handle business .” Id . at 148

. Driving their respective vehicles out of the gas station, Bryant and Bect on pulled up alongside and behind the Suburban at the Intersection. Bryant then fired six shots in to the passenger side of the Suburban and Stephen attempted to t urn left and flee. Before StephenCourt of Appeals of Indiana | Memorandum Decision 71A05

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was able to flee, Smith fired five shots from the Lancer towards Stephen and the Suburban while both vehicles were in the intersection

. 2 Just after the shooting, once Bryant and Smith reconvened, Smith stated, “I think I killed him.” Tr. Vol. II , p. 154.

[15] For these reasons , there was substantial evidence to suppo rt Smith’s attempted murder conviction.


### The Trial Court Did Not Abuse its Discretion when it Refused to Give Smith’s

Tendered Self

- Defense Instruction to the Jury
[16] The trial court has broad discretion in how it instructs a jury and we review its discretion only for abuse. McCowan v. State , 27 N.E.3d 760, 763 (Ind. 2015). “To determine whether a jury instruction was properly refused, we consider: (1) whether the tendered instruction correctly states the law; (2) whether there was evidence presented at trial to support giving the instruction; and (3) whether the substance of the instruction was covered by other in structions that were given.” Id. at 763

– 64 . The second element listed above is most applicable t o the case before us which our s upreme c ourt has at times rephrased as “whether there was evidence to render the instruction applicable to the issues.” Hoskins v. State , 737 N.E.2d 383, 385 (Ind. 2000) (citing Williams v. State , 481 N.E.2d 1319, 1322 (Ind. 1985)). This description by the court proves helpful for our analysis here.

2 It is immaterial that none of the shots actually struck Stephen. See Corbin v. State , 840 N.E.2d 424, 429 (Ind. Ct. App. 2006) (holding there is no requirement that shots fired actually strike the intended victim for the attempted murder statutes to be triggered).Court of Appeals of Indiana | Memorandum Decision 71A05

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[17] A defendant in a criminal case is entitled to have the jury instructed on any theo ry of defense as long as it has some basis in the evidence. Creager v. State , 737 N.E.2d 771, 777 (Ind. Ct. App. 2000), trans. denied . It does not matter whether the evidence is weak or even inconsistent ; however, the evidence at trial must provide some pr obative val ue to support providing the instruction. Id. Three facts must be proven when a defendant claims self

- defense: 1) that he was in a place where had a right to be; 2) that he acted without fault; and 3) that he had reasonable fear or apprehension o f death or great bodily harm. Miller v. State , 720 N.E.2d 696, 700 (Ind. 2000). Further, self

- defense is not appropriate for a defendant who is the initial aggressor except in limited circumstances , which are inapplicable here

. Id.

[18] Smith ten dered the follo wing instruction to the trial court :

I.C. 35

- 41

- 3

- 2 defines “self

- defense” as follows: A person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. A person : (1) is justified in using deadly force; and (2) does not have a duty to retreat: if the person reasonably believes that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary. However, a person is not justified in using force if:Court of Appeals of Indiana | Memorandum Decision 71A05

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(1) the person is committing or escaping after the commission of a crime; (2) provokes unlawful action by another person, with intent to cause bodily injury to the other person; or (3) the person has entered into combat with another person or is the initial aggressor unless the person withdr aws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action. Use of force disproportionate to necessity exceeds the bounds of justifiable force. “Dead ly force” is force that creates a substantial risk of serious bodily injury. “Bodily injury” means any impairment of physical condition including physical pain. “Serious bodily injury” means bodily injury that creates a substantial risk of death or that ca uses: serious permanent disfigurement, unconsciousness, extreme pain, permanent or protracted loss or impairment of the function of a bodily member or organ, or the loss of a fetus. The State has the burden of proving beyond a reasonable doubt that t he Defendant did not act in self

- defense. Self

- defense may be disproved by the State either by producing additional evidence specifically disproving one of the elements of self

- defense or by the evidence taken as a whole. Appellant’s App. Vol. II, p p . 20

– 21. Smith argued that the instruction was justified because Irving testified that when Stephen exited the Suburban , she was afraid he m ight shoot. 3

3 There is conflicting testimony here as Stephen testified he never fully exited the Suburban, T r. Vol. II , p. 130, and when confronted with conflicting evidence we co nsider it most favorably to the ruling of the trial court. Dalton v. State , 56 N.E.3d 644, 647 (Ind. Ct. App. 2016), trans. denied

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[19] After due consider ation , the trial court refused to give the tender ed instruction and reasoned in part , “ I did not believe there was, as required by case law, evidence on the record to support the requirement that the defendant himself would have foreseen some threat or some imminent bodily harm that would have led to t hen him acting in self

- defense.” Final Sta tements Tr., p. 2. We agree.
[20] Even though only a scintilla of evidence is necessary to support providing a self

defense instruction, there is no evidence that Smith faced any fear or apprehension of bodily harm at any point

. Additionally, Smith acted as an aggressor . Three witnesses testified at trial that there was no contact between the occupants of the Suburban and those in the other two vehicles prior to the first shots being fired. Tr. Vol. II, pp. 120, 141, 161. Also, there is no evidence that any of the occupants of the Suburban were carrying firearms at the time of the shooting. Id. at 26, 123

- 24, 138

– 39. Smith was never in danger and “[a]bsent evidence of impending danger, a self

- defense instruction is not proper.” White v. State , 726 N.E.2d 831, 83 4 (Ind. Ct. App. 2000), trans. denied

. Therefore, we conclude that the trial court did not abuse its discretion when it refus ed to give the jury Smith’s tendered instruction regarding self

- defense. 

### Conclusion

[21] Considering the evidence favorable to the jury’ s verdict, we conclude that the State presented sufficient evidence to support Smith’s attempted murderCourt of Appeals of Indiana | Memorandum Decision 71A05

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conviction. Further, the trial court did not abuse its discretion when it refused to give the jury Smith’s tendered instruction regarding self

- defense.

[22] Affirmed.
Kirsch, J., and Altice, J., concur.