Court of Appeals of Indiana | Memorandum Decision 20A

- CR

- 428 | September 14, 2020 Page 1 of 8 

### 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 Daniel I. Hageman Marion County Public Defender Agency Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Courtney L. Staton Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Carl Murray , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. September 14, 2020 Court of Appeals Ca se No. 20A

- CR

- 428 Appeal from the Marion Superior Court The Honorable Grant W. Hawkins, Judge Trial Court Cause No. 49G05

- 1908

- F3

- 32467

Bailey , Judge
.Court of Appeals of Indiana | Memorandum Decision 20A

- CR

- 428 | September 14, 2020 Page 2 of 8 

# Case Summary

[1] Carl Murray (“Murray”) appeals his convictions for two counts of Attempted Murder, Level 1 felonies, 1 and one count of Domestic Battery, as a Cl ass A misdemeanor. 2 We affirm.



# Issue s

[2] Murray presents two issues for review:

I. Whether there is sufficient evidence to support his conviction for the attempted murder of Y.H.; and

II. Whether instructing the jury on transferred intent was fundamental error because it conflicted with an instruction
on the State’s burden of proof

. 

# Facts and Procedural History

[3] During the summer of 2019, Murray presented his wife, Y.H., with dissolution documents. Y.H. did not sign the documents but the couple separated . The ir estrangement was partially due to Murray’s accusations that Y.H. was sexu ally involved with their neighbor and friend, J.J. After the separation, Murray

1 Ind. Code § § 35

- 42

- 1

- 1, 35

- 41

- 5

- 1

. 2 I.C. § 35

- 42

- 2

- 1.3(a)(1)

.Court of Appeals of Indiana | Memorandum Decision 20A

- CR

- 428 | September 14, 2020 Page 3 of 8 would sometimes return to Y.H.’s Indianapolis residence to socialize with friends on the porch or to visit his stepchildren.

[4] On the day of August 10, 2019, Murray was in and o ut of the residence. He transported his stepdaughter to her friend’s house. At y pically , he asked his stepson if he would like to go to his biological father’s house , and then drove him there

. Around 11:00 p.m., Y.H. and J.J. left to buy cigarettes. Whe n they returned, Y.H. backed her vehicle into her driveway . The pair sat in Y.H.’s vehicle for about twenty

- five minutes, drinking and listening to music. Y.H.

saw Murray drive his vehicle through an alley and park behind her vehicle.

[5] Murray approached the driver’s side of Y.H.’s vehicle, holding a rifle. He opened the door and said, “ you mother******* thought this was a game. ” (Tr. Vol. II, pg. 221.) Y.H. saw that the rifle was pointed toward J.J.’s head and she grabbed the barrel. Murray shot throu gh Y.H.’s right hand pinky finger and Y.H. yelled “mother****** you just shot my finger off. ” ( Id. at 222.) Murray continued shooting, until Y.H. was hit with three bullets and J.J. was hit with six bullets.

[6] Inside the residence, Y.H.’s friend Steven Sea ls (“Seals”) had been watching television when he heard Y.H. cry out “ no Carl don’t ” followed by gunshots. ( Id. at 138.) Seals looked in vain for a weapon, then went outside to confront Murray. Murray approached Seals, rifle in hand, but Seals tackle d M urray and flip ped him over a porch railing. Seals got Murray into a headlock and used his fists and a brick to strike blows to Murray’s head. Seals was able to get controlCourt of Appeals of Indiana | Memorandum Decision 20A

- CR

- 428 | September 14, 2020 Page 4 of 8 of Murray’s rifle at some point but when Seals tried to fire it, he discovered tha t it was either empty or jammed. During the struggle , Murray protested that he loved Y.H. and was sorry. When Seals was injured by a brick and lost his grip , Murray escape d the headlock , ran to his truck , and drove off.

[7] Police and emergency medical personnel arrived to find Y.H. and J.J. each in a critical condition. One bullet had struck an artery in Y.H.’s leg . She underwent surgery and was given 5.5 lite r s of blood, essentially a replacement of her full blood supply. Y.H. was hospitalized for five days. J.J. was placed in a medically induced coma, having suffered injuries to his colon, spleen, diaphragm, spine, and kidney. J.J. endured multiple surgeries, received five liters of blood, and was hospitalized for nine teen days.

[8] On January 6, 2020, Murray was brought to trial before a jury on two counts of Aggravated Battery, Level 3 felonies, 3 two counts of Attempted Murder, Level 1 felonies, and one count of Domestic Battery , as a Level 5 felony

. The jury found Murr ay guilty as charged but, due to double jeopardy concerns, the trial court declined to enter judgments of conviction upon the Aggravated Battery

counts and reduced the Domestic Battery conviction to a misdemeanor

. Murray received consecutive sentence s of thirty years and twenty

- five years for the attempted murders of J.J. and Y.H., respectively. He was given a

concurrent one

- year sentence for Domestic Battery. Murray now appeals.

3 I.C. § 35

- 42

- 2

- 1.5

.Court of Appeals of Indiana | Memorandum Decision 20A

- CR

- 428 | September 14, 2020 Page 5 of 8 

# Discussion and Decision Sufficiency of the Evidence

[9] Murra y does not contest the sufficiency of the evidence supporting his conviction for the attempted murder of J.J. However, he contends that the State presented insufficient evidence of his intent to kill Y.H. He points to a lack of testimony that he delibera tely aimed the rifle at Y.H. or verbally threatened Y.H. in particular.

[10] In order to convict Murray of the a ttempted m urder of Y.H. , the State was required to prove beyond a reasonable doubt that Murray , acting with the specific intent to commit murder, eng aged in an overt act that constituted a substantial step toward the commission of the crime. Davis v. State , 558 N.E.2d 8 11, 812 (Ind. 1990)

.

[11] 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 factfinder could f ind 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 c ause death. Davis v. State , 558 N.E.2d 811, 812 (Ind. 1990)

. Discharging a weapon in the direction of a victim is sub stantial evidence from which a jury can infer intent to kill. Leon v. State , 525 N.E.2d 331, 332 (Ind. 1988)

.Court of Appeals of Indiana | Memorandum Decision 20A

- CR

- 428 | September 14, 2020 Page 6 of 8 [12] Y.H. tes tified that Murray , armed with a rifle, approached her vehicle, opened the door , and stated “you mother******* thought this was a game.” (Tr. Vol. II, pg. 221.) After Murray fired the first shot , which severed Y.H.’s pinky, and Y.H. cur sed at him, Murray did not desist. Rather, h e continued firing his
weapon into the vehicle until it was either empty or jammed. Y.H. was ultimately struck by three bullets. From this evidence, the jury could reasonably conclude that Murray intended to k ill Y.H.



## Instruction on Transferred Intent

[13] “The purpose of a jury instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and co rrect verdict.” Dill v. State , 741 N.E.2d 1230, 1232 (Ind. 2001)

. Jury instruction is a matter assigned to trial co urt discretion, and an abuse of that discretion occurs when instructions, taken as a whole, mislead the jury as to the applicable law. Ham v. State , 826 N.E.2d 640, 641 (Ind. 2005)

.

[14] Here, the jury was instructed, in accordance with Spradlin v. State , 569 N.E.2d 948, 950 (Ind. 1991) , that the jury could convict Murray of Attempted Murder only if it found that he had specific intent to kill. The jury also received an instruction on transferred intent :
Under the doctrine of Transferred Intent, the intent to harm one person may be treated as the intent to harm a different person when, through mistake or inadvertence, violence directed toward
o ne person results in injury to a different person.Court of Appeals of Indiana | Memorandum Decision 20A

- CR

- 428 | September 14, 2020 Page 7 of 8 In a situation where there is an intent to kill one person, but a different person suffers the injury and dies, the intent to kill the first person may serve as proof of the intent to kill the actual victi m.
Murray lodged a vague objection: “ I have a problem with it because if there’s an accident then where’s the transferred intent? ... For the record, I’m objecting to it.” (Tr. Vol. III, pg. 71.) On appeal, he r elies upon grounds not asserted at trial, that is, he argues that the transferred intent instruction conflict s with the instruction on specific intent to kill and the State could have secured a conviction upon a lessened burden of proof

.

[15] It is well

- settled that a defendant may not object to an instruction upon one ground at trial and pr esent a different ground upon appeal. See Morgan v. State , 755 N.E.2d 1070, 1077 (Ind. 2001)

. Murray has therefore waived any such

error and may prevail only upon showing fundamental error. Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant ’ s rights as to “make a fair trial impos sible.” Benson v. State , 762 N.E.2d 748, 756 (Ind. 2002)

.

[16] Under the doctrine of transferred intent , a defendant ’ s inte nt to kill one person is transferred when, by mistake or inadvertence, the defendant kills a third
person; thus, the defendant may be found guilty of the murder of the person who was killed, even though the defendant intended to kill another. Blanche v. State , 690 N.E.2d 709, 712 (Ind. 1998)

. “ This doctrine also applies to the intentCourt of Appeals of Indiana | Memorandum Decision 20A

- CR

- 428 | September 14, 2020 Page 8 of 8 necessary for attempted murder. ” Id. Murray has shown no conflict or error in the instructions given to the jury, much less fundamental error.



# Conclusion

[17] Sufficient evidence supports Murray’s conviction for the attempted murder of Y.H. He has not established fundamental error in the instruction to the jury.

[18] Affirmed.

Vaidik, J., and Baker, Sr. J., concur
.