Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 1 of 11

ATTORNEY FOR APPELLANT

Bruce W. Graham

Graham Law Firm P.C.

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Alain Kiiwon Powell, Jr.,

Appellant-Defendant,

v. 

State of Indiana, 

Appellee-Plaintiff

June 28, 2019

Court of Appeals Case No.

18A-CR-1812 

Appeal from the Tippecanoe 

Circuit Court

The Honorable Sean M. Persin, 

Judge

Trial Court Cause No.

79C01-1703-F1-4 

May, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 2 of 11

[1] Alain Kiiwon Powell Jr. appeals his conviction of Level 1 felony attempted 

murder1 for the shooting of Davyn Nichols. He presents three issues for our 

review, which we restate as:

1. Whether the State presented sufficient evidence Powell 

committed Level 1 felony attempted murder for the shooting of 

Davyn Nichols;

2. Whether the trial court abused its discretion when it gave a 

modified version of the State’s proffered jury instruction 

regarding transferred intent; and 

3. Whether Powell’s two convictions of Level 1 felony attempted 

murder violated double jeopardy.

We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] In March 2017, Travis Nichols purchased a Ford Taurus from Tyler Howard. 

Shortly thereafter, Howard asked to borrow the vehicle, and he did not return 

it. On March 20, 2017, Travis, Davyn Nichols, and Troy Clements drove in a 

black Cadillac to the house where they believed the Taurus was parked. Travis 

was driving, Davyn was in the passenger seat, and Clements was in the back 

seat of the black Cadillac. 

 

1 Ind. Code § 35-42-1-1 (murder); Ind. Code § 35-41-5-1 (attempt).
Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 3 of 11

[3] Around the same time Powell, Brittany Warren, and a third unidentified person

were in an orange Cadillac. Warren received a call from Howard, who told her 

that Travis was in a black Cadillac in front of Howard’s house. Howard 

indicated he suspected Travis was there to take back the Taurus and there might 

be a physical altercation.

[4] Powell drove the orange Cadillac to Howard’s house and saw the black 

Cadillac with Travis in the driver’s seat. Powell pulled up to the black Cadillac 

so that the driver’s side of the orange Cadillac was next to the passenger side of 

the black Cadillac. Powell rolled down the window and asked if Travis “got a 

problem with” Howard, whom Powell referred to as his “brother.” (Tr. Vol. II 

at 86-7.) Powell and Travis then began to argue.

[5] Davyn saw Powell holding a gun and told Travis that Powell had a gun. Travis 

said to Powell, “why you bring a gun to a fight for you know I aint got no gun.” 

(Id. at 126) (errors in original). Travis started to pull away from Powell, and 

Powell fired five to six shots at Travis’ vehicle. Two of the shots hit Davyn, 

who suffered multiple injuries and would have died without medical attention.

[6] Police later apprehended Powell at his father’s apartment. On March 24, 2017, 

the State charged Powell with three counts of Level 1 felony attempted murder 

for the attempted murders of Clements, Travis, and Davyn; Level 3 felony 

aggravated battery of Davyn;

2 Level 5 felony battery of Davyn by means of a 

 

2 Ind. Code § 35-42-2-1.5.
Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 4 of 11

deadly weapon;3 Level 5 felony battery of Davyn resulting in bodily injury;4

Level 5 felony criminal recklessness for firing the gun;

5 and Class A 

misdemeanor carrying a handgun without a license.6

 The State subsequently 

filed an information alleging Powell’s sentence could be enhanced because he 

used a firearm to commit these crimes.

7

 In addition, the State filed a charging 

information alleging Powell committed Level 5 felony carrying a handgun 

without a license with a prior felony conviction.8

[7] After a four-day trial, the jury returned a not guilty verdict on the attempted 

murder charge for Clements and guilty verdicts on all other charges. The jury 

was dismissed, and then the trial court found Powell was eligible for the firearm 

enhancement. On July 9, 2018, the trial court entered convictions for two 

counts of attempted murder and one count of carrying a handgun without a 

license. The trial court sentenced Powell to thirty-two years for each attempted 

murder conviction, to be served consecutive to each other but concurrent with

five years for Level 5 felony carrying a handgun without a license with a prior 

 

3 Ind. Code § 35-42-2-1(g)(2).

4 Ind. Code § 3542-2-1(g)(1).

5 Ind. Code § 35-42-2-2(b)(2).

6 Ind. Code § 35-47-2-1.

7 Ind. Code § 35-50-2-11.

8 Ind. Code § 35-47-2-1(e)(2)(B).
Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 5 of 11

felony conviction. Thus, the court imposed an aggregate sentence of sixty-four 

years.

Discussion and Decision

Sufficiency of the Evidence

[8] When reviewing sufficiency of the evidence to support a conviction, we 

consider only the probative evidence and reasonable inferences supporting the 

fact-finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the 

fact-finder’s role, and not ours, to assess witness credibility and weigh the 

evidence to determine whether it is sufficient to support a conviction. Id. To 

preserve this structure, when we are confronted with conflicting evidence, we 

consider it most favorably to the ruling. Id. We affirm a conviction unless no 

reasonable fact-finder could find the elements of the crime proven beyond a 

reasonable doubt. Id. It is therefore not necessary that the evidence overcome 

every reasonable hypothesis of innocence; rather, the evidence is sufficient if an 

inference reasonably may be drawn from it to support the decision. Id. at 147.

[9] Powell argues the State did not present sufficient evidence to support his 

conviction of Level 1 felony attempted murder of Davyn. Powell concedes the 

evidence supports his conviction for the attempted murder of Travis because 

Powell drove up to Travis’ vehicle and spoke directly to Travis. However, 

Powell contends the State did not prove he possessed the requisite intent to kill 

Davyn, despite the fact she was the person injured in the shooting. We 

disagree.
Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 6 of 11

[10] Murder is defined as “knowingly or intentionally kill[ing] another human 

being,” Ind. Code § 35-42-1-1(1) (2017), and attempt is defined as acting with 

the culpability required for a crime while taking a substantial step toward 

committing that crime. Ind. Code § 35-41-5-1 (2014) (elements of attempt). 

However, our Indiana Supreme Court has held that, for a person to be 

convicted of attempted murder, “the State must prove beyond a reasonable 

doubt that the defendant [acted] with intent to kill the victim.” Sprandlin v. 

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

[11] In Corbin v. State, 840 N.E.2d 424 (Ind. Ct. App. 2006), we summarized existing 

precedent regarding the State’s burden in presenting evidence of intent in an 

attempted murder case:

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 circumstances surrounding the 

crime. Gall v. State, 811 N.E.2d 969, 975 (Ind. Ct. App. 2004). . . 

. Further, our supreme court held that discharging a weapon in 

the direction of a victim is substantial evidence from which the 

jury could infer intent to kill. Leon v. State, 525 N.E.2d 331, 332 

(Ind. 1988).

Id. at 429.

[12] Here, Powell confronted Travis after Howard called Powell and indicated 

Travis may instigate a physical confrontation over the Ford Taurus. Powell 

and Travis traded words regarding Howard, and Travis testified he was “being 

another smart butt.” (Tr. Vol. II at 126.) While Powell and Travis were 
Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 7 of 11

speaking to each other, Davyn commented that Powell was loading a gun. 

Powell’s vehicle was situated on Davyn’s side of Travis’ vehicle, as Powell’s 

driver side was adjacent to the passenger side of Travis’ vehicle. Powell then 

aimed at Travis’ vehicle and fired five to six shots as Travis drove away. Based 

on the ongoing animosity between the parties, Powell’s use of a deadly weapon, 

and the act of firing multiple shots on the side where Davyn was sitting, we 

conclude the State presented sufficient evidence Powell had intent to kill Davyn 

and thus committed Level 1 felony attempted murder against Davyn. See Perez 

v. State, 872 N.E.2d 208, 214 (Ind. Ct. App. 2007) (ongoing hostilities between

parties and use of a deadly weapon sufficient to prove Perez committed 

attempted murder when he fired shots at a car containing rival gang members), 

trans. denied. 

Jury Instruction Regarding Transferred Intent

[13] To preserve a claim of error in the giving of a jury instruction, trial counsel

must timely object and clearly identify the “claimed objectionable matter and

the grounds for the objection.” Scisney v. State, 701 N.E.2d 847, 849 (Ind.

1998). Here, the State proffered an instruction that stated:

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 injury to a different person.

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 
Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 8 of 11

first person may serve as proof of the intent to kill the actual 

victim.

This doctrine may be applied to the intent necessary for 

attempted murder.

(App. Vol. II at 198.) Powell objected, arguing,

I don’t have a problem with the first paragraph for transfer and 

intent but the second paragraph when it starts to talk in a 

situation and this was their proposed instruction a situation 

where there is an intent to kill a person but a different person 

suffers injuries and dies, my argument Judge on this is these are 

facts that are not in evidence and facts and instructions that point 

to anything must be in the evidence and there is a case that states 

that using an instruction that assumes facts that are not in 

evidence is fundamental error and I would say that none of those 

fact, no one died those facts are not in evidence[.]

(Tr. Vol. III at 165) (errors in original). After discussion between the parties 

and the trial court, Powell agreed to use of the instruction as modified, which 

stated, “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 injury to a 

different person.” (App. Vol. II at 198.)

[14] On appeal, Powell argues the instruction regarding transferred intent, to which

he assented to upon modification, is an incorrect statement of law. However,

Powell invited the error of which he now complains by agreeing to use a

modified version of the transferred intent instruction. See Wright v. State, 828
Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 9 of 11

N.E.2d 904, 907 (Ind. 2005) (under the invited error doctrine, “a party may not

take advantage of an error that she commits, invites, or which is the natural

consequence of her own neglect or misconduct”). “Invited errors are not

subject to appellate review, and a party therefore may not invite error, and then

subsequently argue that the error requires reversal.” Oldham v. State, 779 

N.E.2d 1162, 1171 (Ind. Ct. App. 2002), trans. denied. As Powell assented to 

the use of a transferred intent instruction, he cannot now complain the 

instruction was an incorrect statement of the law. See Gamble v. State, 831 

N.E.2d 178, 187 (Ind. Ct. App. 2005) (“[e]rror invited by the complaining party 

is not reversible error”), trans. denied. 

Double Jeopardy

Article 1, Section 14 of the Indiana Constitution provides that “no person shall

be put in jeopardy twice for the same offense.” Two or more offenses are the

same 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).9 Powell argues his 

convictions of Level 1 felony attempted murder violate double jeopardy because

the evidence presented was identical for each count. We agree.

9 The holding in Richardson was modified by Garrett v. State, 992 N.E.2d 710 (Ind. 2013). However, Garrett

further clarified the holding in Richardson as it applied to retrial after an acquittal, which is not at issue in this 

case. Id. at 723.
Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 10 of 11

[15] Here, the State presented evidence Powell shot at Travis’ car five times,

ultimately injuring Davyn. As we noted supra, there was no additional 

evidence that Powell intended to kill a specific victim or took additional steps to 

kill a specific victim. Thus, it is possible that some or all of the evidence used to 

prove Powell’s attempted murder of Travis could also be used to prove Powell’s 

attempted murder of Davyn, and we conclude Powell’s two convictions of 

Level 1 felony attempted murder violate his right against double jeopardy. See 

Curry v. State, 740 N.E.2d 162, 166-7 (Ind. Ct. App. 2000) (holding violation of 

double jeopardy based on actual evidence test in an incident involving a “single 

incident of brutality”), trans. denied.

[16] Accordingly, we vacate the Level 1 felony conviction involving Davyn. Here 

the trial court merged Powell’s guilty verdict of Level 3 felony aggravated 

battery into the Level 1 felony attempted murder conviction as it related to 

Davyn. As we have reversed that attempted murder conviction, it is therefore 

appropriate for the trial court to reinstate the Level 3 felony aggravated battery 

conviction and sentence Powell accordingly. See Ritchie v. State, 243 Ind. 614, 

618, 189 N.E.2d 575, 576 (1963) (“review court, in a proper case, may modify a 

judgment of conviction below and affirm it as a conviction of a lesser degree of 

the offense charged, or of a lesser crime included therein, where the errors do 

not affect the conviction of the lesser offense”) (quoting 5 Am.Jur.2d Appeal 

and Error § 938).

Conclusion
Court of Appeals of Indiana | Opinion 18A-CR-1812 | June 28, 2019 Page 11 of 11

[17] We hold the State presented sufficient evidence to prove Powell committed 

Level 1 felony attempted murder as to Davyn. Additionally, the trial court did 

not commit fundamental error when it allowed an instruction regarding 

transferred intent. However, Powell’s two attempted murder convictions 

violate double jeopardy because they arose from the same incident of brutality 

and thus we vacate Powell’s conviction of Level 1 felony attempted murder as 

to Davyn, reinstate his conviction for Level 3 felony aggravated battery as to 

Davyn, and remand to the trial court for resentencing.

[18] Affirmed in part, reversed in part, and remanded.

Mathias, J., and Brown, J., concur.