Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-02936 | August 24, 2017 Page 1 of 13

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.

ATTORNEY FOR APPELLANT

Bruce W. Graham

Graham Law Firm P.C.

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. MacKenzie

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Hirman E. Jackson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 24, 2017

Court of Appeals Case No.

79A04-1612-CR-2936

Appeal from the Tippecanoe 

Circuit Court

The Honorable Thomas H. Busch, 

Judge

Trial Court Cause No.

79C01-1603-F1-4

Najam, Judge.
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Statement of the Case

[1] Hirman Jackson appeals his convictions

1

for five counts of attempted murder, 

as Level 1 felonies (Counts I-V); two counts of aggravated battery, as Level 3 

felonies (Counts VI and VII); two counts of battery with a deadly weapon, as 

Level 5 felonies (Counts VIII and IX); two counts of battery resulting in serious 

bodily injury, as Level 5 felonies (Counts X and XI); one count of criminal 

recklessness, as a Level 5 felony (Count XII); one count of pointing a firearm, 

as a Level 6 felony (Count XIII); one count of unlawful possession of a firearm 

by a serious violent felon, as a Level 4 felony (Count XIV); a sentencing 

enhancement based on the unlawful use of a firearm in the commission of a 

felony (Count XV); and a habitual offender sentencing enhancement (Count 

XVI). He raises two issues for our review, which we restate as follows:

1. Whether the court committed fundamental error when it 

instructed the jury on transferred intent.

2. Whether the court committed fundamental error when it 

permitted the State to inform the jury as to how the evidence 

demonstrated Jackson’s intent to commit the crimes alleged. 

[2] We affirm. 

 

1

 This was a bifurcated trial. The jury convicted Jackson of Counts I through XIII during the first phase of 

the trial. Jackson waived his right to a jury trial for the second phase, and, after a bench trial, the trial court 

convicted him of Counts XIV and XVI. The court dismissed Count XV, unlawful use of a firearm, during 

phase two of the trial. 
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Facts and Procedural History

[3] On February 12, 2016, Shantaya Kirk, along with three other adults and one 

young child, drove from Chicago, Illinois, to Lafayette, Indiana, to return $500 

she had borrowed from Jackson. Kirk and the others met Jackson at his 

residence. Kirk spoke with Jackson inside his apartment, but she then returned 

to the car where the others waited. Jackson also went out to the vehicle and 

stood next to the passenger door. 

[4] After a few moments, Jackson fired a gun into the vehicle several times. Kirk 

instructed the driver to drive away from Jackson. Jackson continued firing at 

the vehicle until all of the bullets had been fired.2Jackson shot Kirk once in the 

shoulder and once in the forearm. Kirk sustained a broken wrist and continues 

to have pain and numbness in her left shoulder. Jackson shot Steven Allen, one 

of the other adult passengers in the vehicle, in the head. Allen had a seizure as 

a result of the gunshot wound. A surgeon removed the bullet and part of 

Allen’s skull to allow the swelling in his brain to lessen. Allen continues to 

have seizures, he has problems with his left arm and leg, and he has behavioral 

and emotional issues as a result of the damage to his brain. The other 

occupants of the vehicles were uninjured. 

 

2

 During the trial, Jackson admitted to firing the gun multiple times; however, he argued that he had acted in 

self-defense. 
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[5] The State charged Jackson with five counts of attempted murder, two counts of 

aggravated battery, two counts of battery with a deadly weapon, two counts of 

battery resulting in serious bodily injury, one count of shooting a firearm, one 

count of pointing a gun, and one count of unlawful possession, all as felonies. 

The State also charged Jackson with a sentencing enhancement based on the 

unlawful use of a firearm in the commission of a felony and a habitual offender

sentencing enhancement. 

[6] At the close of Jackson’s ensuing jury trial, the court instructed the jury as 

follows, without objection: 

The crime of attempted murder is defined as follows: A person 

attempts to commit a murder when, acting with the specific 

intent to kill another person, he engages in conduct that 

constitutes a substantial step toward killing that person. 

Count I

Before you may convict the Defendant of attempted murder as 

charged in Count I, the State must have proved each of the 

following elements beyond a reasonable doubt:

1. The Defendant

2. acting with the specific intent to kill Shantaya Kirk

3. did fire a deadly weapon at said Shantaya Kirk

4. which was conduct constituting a substantial step toward the 

commission of the intended crime of killing Shantaya Kirk; and 
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5. did not act in self-defense. 

If the State failed to prove each of these elements beyond a 

reasonable doubt, you must find the Defendant not guilty of the 

crime of attempted murder, a felony, charged in Count I.

[7] Appellant’s App. Vol. II at 81. The State’s charges with respect to the other 

victims of attempted murder read the same, except for the different names. The 

court also gave the jury the following instruction, again without objection: 

“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 towards one person results in the injury to a 

different person.” Appellant’s App. Vol. II at 93.

[8] The State had also provided State’s Proposed Instruction 1, which read as 

follows: “Intent to kill may be inferred from the use of a deadly weapon in a 

manner likely to cause death or great bodily injury, in addition to the nature of 

the attack, and the circumstances surrounding the crime.” Appellant’s App. 

Vol. II at 58. The trial court rejected the proposed instruction but gave the State 

permission to argue the underlying point in its closing arguments. The State 

then made the following statements during its closing argument, without 

objection: 

We know that [Jackson] shot [Kirk]. Acting with the specific 

intent to kill. Again we can’t figure out exactly what a person is 

thinking but we look at the totality of the circumstances. Intent 

to kill may be interpreted from the use of a deadly weapon in a 

manner likely to cause death or great bodily injury in addition to 
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the nature of the attack and the circumstances surrounding a 

crime. This is the state of case law in the state of Indiana. This 

is how we can look at intent to kill in this case. It can be inferred 

from the use of a deadly weapon [in] a manner likely to cause 

death or great bodily harm along with the nature of the totality of 

the circumstances, the circumstances surrounding it.

Tr. Vol. IV at 205-06. The jury found Jackson guilty on Counts I through XIII. 

After a bench trial on the remaining charges, the trial court found Jackson 

guilty on Counts XIV and XVI. The court then sentenced him to ninety-two

years in the Department of Correction.

3

 This appeal ensued.

Discussion and Decision

Issue One: Transferred Intent Jury Instruction

[9] Jackson asserts that the trial court committed fundamental error when it 

instructed the jury on transferred intent. As the Indiana Supreme Court has 

explained:

Appellate courts may, on rare occasions, resort to the 

fundamental error exception to address on direct appeal an 

otherwise procedurally defaulted claim. However, fundamental 

error is extremely narrow and available only when the record 

reveals a clearly blatant violation of basic and elementary 

principles, when the harm or potential for harm cannot be 

 

3

 The court entered judgement on Counts I through V, XIV, and XVI. The court sentenced Jackson based 

on Counts I, II, XIV, and XVI. The court concluded that Counts III, IV, and V merged into Counts I and II 

for purposes of sentencing. The Court declined to enter judgment on the remaining guilty verdicts. 
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denied, and when the violation is so prejudicial to the rights of 

the defendant as to make a fair trial impossible.

Shoun v. State, 67 N.E.3d 635, 640 (Ind. 2017) (citations omitted). With respect 

to jury instructions, we usually 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 instructions that were given.” McCowan v. State, 27 

N.E.3d 760, 763-64 (Ind. 2015) (citations omitted). We consider the 

instructions as a whole and do not reverse unless the whole of the instructions 

misled the jury as to the law in the case. Id. at 764.

[10] It is well-established that the specific intent to kill is a necessary element of 

attempted murder. A jury 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 intent to kill the victim, engaged in conduct 

which was a substantial step toward such killing.

Spradlin v. State, 569 N.E 2d 948, 950 (Ind. 1991). 

[11] Here, again, the trial court instructed the jury as follows: 

The crime of attempted murder is defined as follows: A person 

attempts to commit a murder when, acting with the specific intent to 

kill another person, he engages in conduct that constitutes a 

substantial step toward killing that person. 
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Count I

Before you may convict the Defendant of attempted murder as 

charged in Count I, the State must have proved each of the 

following elements beyond a reasonable doubt:

1. The Defendant

2. acting with the specific intent to kill Shantaya Kirk

3. did fire a deadly weapon at said Shantaya Kirk

4. which was conduct constituting a substantial step toward the 

commission of the intended crime of killing Shantaya Kirk; and 

5. did not act in self-defense. 

If the State failed to prove each of these elements beyond a 

reasonable doubt, you must find the Defendant not guilty of the 

crime of attempted murder, a felony, charged in Count I.

Appellant’s App. Vol. II at 81 (emphasis added). The “specific intent”

language was repeated in each of the other four counts in the jury instruction on 

attempted murder. 

[12] The trial court also provided the following instruction on transferred intent to 

the jury: “[u]nder 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 towards one person results in the 

injury to a different person.” Id. at 93. 
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[13] The Indiana Supreme Court has permitted the doctrine of transferred intent to 

be applied to attempted murder charges. In Blanche v. State, 690 N.E.2d 709, 

711 (Ind. 1998), the defendant was convicted of, among other things, attempted 

murder. The defendant raised several issues on appeal, including whether the 

evidence was sufficient to support his convictions and whether the jury was 

properly instructed on the specific intent requirement for attempted murder. 

During its discussion on the sufficiency of the evidence, the Indiana Supreme 

Court held that under the doctrine of transferred intent

a defendant’s intent to kill one person is transferred when, by 

mistake or inadvertence, the defendant kills a third person; the 

defendant may be found guilty of the murder of the person who 

was killed, even though the defendant intended to kill another. 

White v. State, 638 N.E.2d 785, 786 (Ind. 1994). This doctrine 

also applies to the intent necessary for attempted murder. Straub 

v. State, 567 N.E.2d 87, 90-1 (Ind. 1991) (establishing that state 

need not introduce evidence that the defendant intended to kill 

the actual victim, but only that the defendant intended to kill 

someone). 

Id. at 712. 

[14] Here, Jackson does not challenge whether the language in the attempted 

murder instruction properly instructs the jury that a defendant is required to 

have specific intent to kill in order to be convicted of attempted murder. 

Rather, he asserts that the trial court committed fundamental error when it also 

provided the transferred intent instruction to the jury because it “blurred the 

distinction between specific and general intent and rendered the entire pool of 
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jury instructions confusing and prejudicial.” Appellant’s Br. at 16. To support 

his assertion, Jackson relies on Beasley v. State, in which the State charged the 

defendant with attempted murder, and the trial court gave the following jury

instruction: 

TO CONVICT THE DEFENDANT OF ATTEMPTED 

MURDER, THE STATE MUST HAVE PROVED EACH OF 

THE FOLLOWING ELEMENTS:

THE DEFENDANT LARRY E. BEASLEY

(1) KNOWINGLY OR INTENTIONALLY.

(2) ENGAGED IN CONDUCT BY KNOWINGLY 

STRIKING WITH A DEADLY WEAPON, A KNIFE, THE 

PERSON OF BEVERLY PRESTON, RESULTING IN 

SERIOUS BODILY INJURY.

(3) WHICH CONDUCT CONSTITUTES A SUBSTANTIAL 

STEP TOWARD THE KNOWING OR INTENTIONAL

KILLING OF ANOTHER HUMAN BEING.

IF THE STATE FAILED TO PROVE EACH OF THE 

ELEMENTS BEYOND A REASONABLE DOUBT, THE 

DEFENDANT SHOULD BE FOUND NOT GUILTY.

IF THE STATE DID PROVE EACH OF THE ELEMENTS 

BEYOND A REASONABLE DOUBT, THEN YOU SHOULD 

FIND THE DEFENDANT GUILTY OF ATTEMPTED 

MURDER, A CLASS A FELONY.
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643 N.E.2d 346, 347 (Ind. 1994). On appeal, the Indiana Supreme Court held

that the jury instruction constituted fundamental error because the jury 

could convict the defendant of attempted murder if he only acted

knowingly. The court held that, “although we usually evaluate jury 

instructions as a whole, where the trial court lists the elements of attempted 

murder and includes an incorrect mens rea, this error cannot be cured by 

another instruction.” Id. at 348. 

[15] The present case is distinguishable from Beasley. The court in Beasley made it 

clear that the error could not be cured by another instruction when the elements 

of attempted murder included an incorrect mens rea. Here, however, the court 

properly instructed the jury on the elements of attempted murder, and the 

instructions make it clear to the jury that specific intent to kill is a necessary 

requirement for the offense of attempted murder. This transferred intent 

instruction did not introduce a new level of intent but, instead, referenced the 

intent required for the underlying offense. 

[16] When considered as a whole, the instructions did not mislead the jury. See 

McCowan, 27 N.E.3d at 764. Accordingly, we cannot say that the trial court 

committed fundamental error when it instructed the jury. 

Issue Two: The State’s Closing Argument

[17] Jackson also asserts that the court erred by permitting the State to include the 

language from the State’s Proposed Jury Instruction 1, which the court refused 

to read to the jury, in the State’s closing argument to the jury. But as an initial 
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matter we note that Jackson did not object during the State’s closing argument. 

Further, he does not argue on appeal that the alleged error was fundamental 

error. As such, we conclude that Jackson has not preserved this issue for

appellate review. See Ind. Appellate Rule 46(A)(8)(a).

[18] Jackson’s waiver notwithstanding, no error occurred on this issue. The trial 

court rejected the proposed instruction but gave the State permission to argue 

the point in its closing argument. The State then argued as follows: 

We know that [Jackson] shot [Kirk]. Acting with the specific 

intent to kill. Again we can’t figure out exactly what a person is 

thinking but we look at the totality of the circumstances. Intent 

to kill may be interpreted from the use of a deadly weapon in a 

manner likely to cause death or great bodily injury in addition to 

the nature of the attack and the circumstances surrounding a 

crime. This is the state of case law in the state of Indiana. This 

is how we can look at intent to kill in this case. It can be inferred 

from the use of a deadly weapon a manner likely to cause death 

or great bodily harm along with the nature of the totality of the 

circumstances, the circumstances surrounding it.

Tr. Vol. IV at 205-06. 

[19] As we have explained:

[i]t is well settled that the proper scope of final argument is 

within the trial court’s sound discretion. Taylor v. State, 457 

N.E.2d 594, 599 (Ind. Ct. App. 1983). On appeal, we will not 

find an abuse of discretion unless the trial court’s decision is 

clearly against the logic and effect of the facts and circumstances 

before it. Id. In seeking reversal of a conviction, however, it is 

incumbent upon the appellant to establish that the trial court’s 
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abuse of discretion was “clearly prejudicial” to his rights. See id.;

Rouster v. State, 600 N.E.2d 1342, 1347 (Ind. 1992).

Nelson v. State, 792 N.E.2d 588, 591-92 (Ind. Ct. App. 2003), trans denied.

[20] In support of his argument, Jackson cites Dill v. State, where our Supreme Court 

held that “instructions that unnecessarily emphasize one particular evidentiary 

fact, witness, or phase of the case have long been disapproved.” 741 N.E.2d 

1230, 1232 (Ind. 2001). However, again, the issue in the instant appeal is not 

whether the trial court provided an improper instruction to the jury but whether 

the court properly allowed the State to inform the jury of the State’s evidentiary 

basis for Jackson’s intent. “[T]he mere fact that a jury may not be instructed on 

a certain point of law does not lead to the conclusion that argument concerning 

that point of law is also improper.” Weis v. State, 825 N.E.2d 896, 904 (Ind. Ct. 

App. 2005). The State’s comments during closing argument were not improper 

or misleading. Accordingly, we cannot say that the trial court erred when it 

allowed the State to make those statements during its closing argument, and we 

affirm Jackson’s convictions. 

[21] Affirmed. 

Kirsch, J., and Brown, J., concur.