Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Aug 09 2012, 10:37 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
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ATTORNEY FOR APPELLANT, ATTORNEYS FOR APPELLEE:
Anthony W. Smith:
GREGORY F. ZOELLER
JEREMY K. NIX Attorney General of Indiana
Matheny Hahn Denman & Nix, LLP
Huntington, Indiana ANGELA N. SANCHEZ
Deputy Attorney General
ATTORNEY FOR APPELLANT, Indianapolis, Indiana
Bobby J. McDaniel:
MATTHEW G. GRANTHAM
Bowers Brewer Garrett & Wiley, LLP
Huntington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY W. SMITH, )
BOBBY J. MCDANIEL, )
)
Appellants-Defendants, )
)
vs. ) No. 35A04-1112-CR-662
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON CIRCUIT COURT
The Honorable Thomas M. Hakes, Judge
Cause No. 35C01-1012-FB-309
August 9, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Anthony Smith and Bobby McDaniel appeal their attempted murder convictions
and sentences. We affirm.
Issues
Anthony and McDaniel raise several issues, which we restate as:
I. whether the jury was properly instructed;
II. whether there is sufficient evidence to sustain
Anthony’s conviction;
III. whether Anthony’s sentence is inappropriate; and
IV. whether the trial court properly determined that
McDaniel’s sentence could not be further suspended.
Facts
In 2010, Misty Sell was living with David Smith.1 In November 2010, she broke
up with David and began dating Anthony. In December 2010, she stopped dating
Anthony and moved back in with David. When Sell broke up with Anthony, he
threatened to kill Sell, David, and himself. Less than a week later, on December 17,
2010, Sell retrieved some of her belongs from Anthony, and Sell told Anthony that she
did not want to get back together with him. She returned to David’s apartment, and they
went to sleep.
1
Anthony Smith and and David Smith are not related.
2
In the early morning hours of December 18, 2010, Anthony left his house with a
steak knife in the waistband of his pants, and McDaniel, Anthony’s stepson, followed
Anthony. Sell and David awoke to someone beating on the front door. As David put on
his pants, Sell opened the door to Anthony and McDaniel. They pushed Sell out of the
way and went into the apartment. David backed into a corner and asked what they were
doing there. Anthony said, “shut up you f****** faggot I’m going to kill you.” Tr. p.
494. Anthony and David fought until Sell started to call the police, and then Anthony
went toward the door. At that point, McDaniel and David began fighting. Anthony went
toward David, but Sell yelled at him and shoved him out of the apartment.
Sell saw Anthony and McDaniel each stab David on his left side. David was
stabbed a total of three times and suffered a lacerated spleen and diaphragm, which
required surgery to suture. Two knives were recovered from the scene.
The State initially charged Anthony and McDaniel with Class B felony aggravated
battery. The informations were amended to include charges of Class A felony attempted
murder and Class C felony battery, and the aggravated battery charges were dismissed.
Anthony and McDaniel were jointly tried, and a jury found them guilty as charged. At
sentencing, the trial court vacated the battery convictions. For the attempted murder
convictions, Anthony was sentenced to forty-five years, with ten years suspended to
probation, for an executed sentence of thirty-five years, and McDaniel was sentenced to
thirty-five years, with fifteen years suspended to probation, for an executed sentence of
twenty years. Anthony and McDaniel now appeal in a consolidated appeal.
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Analysis
I. Jury Instructions
Anthony and McDaniel argue that the jury was improperly instructed regarding
intent. A trial court’s decision on how to instruct a jury is reviewed for abuse of
discretion. Treadway v. State, 924 N.E.2d 621, 636 (Ind. 2010). When evaluating the
jury instructions on appeal, we look to whether the tendered instructions correctly state
the law, whether there is evidence in the record to support giving the instruction, and
whether the substance of the proffered instruction is covered by other instructions. Id.
We will reverse a conviction only if the appellant demonstrates that the instruction error
prejudices his or her substantial rights. Id.
McDaniel and Anthony both argue that the manner in which the jury was
instructed relieved the State of having to prove the intent element of attempted murder by
allowing the jury to infer that they acted with the specific intent to kill David. Anthony’s
argument is based primarily on Court’s Final Instruction No. 6, which provides, “Intent to
kill can be inferred from the use of a deadly weapon in a manner likely to cause death or
great bodily harm.” Anthony’s App. p. 137. Anthony also asserts that certain language
in Court’s Final Instruction No. 8 amplified the language in Court’s Final Instruction No.
6. Court’s Final Instruction No. 8 provides in part, “[y]ou may, however, infer that every
person intends the natural and probable consequences of his voluntary acts unless the
circumstances are such to indicate the absence of such intent.” Id. at 139.
Anthony relies on McDowell v. State, 885 N.E.2d 1260 (Ind. 2008), in which
McDowell stabbed the victim in the neck during an argument. The stab wound resulted
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in a one-inch cut, and the damage was repaired during surgery. It appeared the victim
would fully recover; however, a blood clot in an artery broke loose and caused blood to
enter his lungs, and he died of asphyxiation due to blood in his lungs six days after being
stabbed. McDowell was charged with and convicted of Class A felony voluntary
manslaughter. During her trial, the jury was instructed, “[t]he intent to kill may be
inferred from evidence that a mortal wound was inflicted upon an unarmed person with a
deadly weapon in the hands of the accused.” McDowell, 885 N.E.2d at 1262.
In reversing McDowell’s voluntary manslaughter conviction based on an
instructional error, our supreme court distinguished this instruction from other cases in
which no instructional error was found. Id. at 1263. The McDowell court explained:
In Bethel, this Court found no error in the giving of an
instruction permitting the jury to infer intent to commit
murder from the use of a deadly weapon in a manner likely to
cause death or great bodily injury. 730 N.E.2d at 1246. The
challenged instruction approved in Brown was somewhat
similar: “You are instructed that intent and purpose to kill
may be inferred from the deliberate use of a deadly weapon in
a manner calculated to produce death.” 691 N.E.2d 438, 444
(Ind. 1998). But unlike the present case, the instructions in
both Bethel and Brown, by including such words and phrases
as “in a manner likely,” “deliberate,” and “in a manner
calculated,” employed language specifically relating to the
actor’s state of mind and referring to evidentiary facts
relevant to inferring criminal intent.
Id. (quoting Bethel v. state, 730 N.E.2d 1242 (Ind. 2000); Brown v. State, 691 N.E.2d
438 (Ind. 1998)). The McDowell court concluded:
The challenged instruction operated to relieve the State’s
burden to prove the requisite intent element: that the
defendant knowingly or intentionally killed a person. It
misled the jury by authorizing a conviction for this offense
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merely upon evidence that [the victim’s] death resulted from
a deadly weapon “in the hands of the defendant.”
Id. at 1264.
Anthony argues that, as in McDowell, his intent, not his action, was at issue.
According to Anthony, the fact that he used a kitchen knife to inflict a single stab wound
did not support an inference that the natural and probable consequence of his act was to
kill David, who suffered a relatively minor wound.
We believe that Anthony’s reliance on McDowell is misplaced. Aside from the
factual distinctions between this case and McDowell, Court’s Final Instruction No. 6 is
not the same as the McDowell instruction. In fact, Court’s Final Instruction No. 6 is in
line with the Bethel and Brown instructions in that it refers to the use of a deadly weapon
“in a manner likely to cause death or great bodily harm.” Anthony’s App. p. 137. This
language relates to the actor’s state of mind and refers to the facts relevant to inferring
criminal intent. See McDowell, 885 N.E.2d at 1263. Unlike McDowell, the instruction
did not authorize a conviction merely for Anthony’s use of a deadly weapon, and
Anthony’s attempts to distinguish the facts of Bethel and Brown are unavailing. Thus,
Anthony has not established that the trial court abused its discretion by tendering Court’s
Instruction No. 6 to the jury.
McDaniel’s argument that the State was relieved of its burden of proving intent is
based on Court’s Final Instruction No. 8, which provides:
Where a certain kind of culpability is required to make
an act an offense, such as in the charges filed against the
defendants, it is not always possible to prove an intent by
direct evidence, for purposes and intent are subjective facts.
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That is, they exist within the mind of a man, and since you
cannot delve into a person’s mind and determine his purpose
and intent, you may look to all the surrounding
circumstances, including what was said and done in relation
thereto. You may, however, infer that every person intends
the natural and probable consequences of his voluntary acts
unless the circumstances are such to indicate the absence of
such intent.
Anthony’s App. p. 139.
In Winegeart v. State, 665 N.E.2d 893 (Ind. 1996), our supreme court reviewed a
similar instruction for fundamental error. In affirming the conviction, the court
explained:
Instruction 18 talks in terms of what the jury “may look to,”
“may infer,” and may consider in order to arrive at “a
determination of the defendant’s intent.” These phrases
describe permissive inferences, not mandatory presumptions.
Moreover, we note that the permissive term “may” is used
here three times. Overall, Instruction 18 did not mandate that
the jury employ any particular presumptions but merely
permitted it to draw appropriate inferences from the evidence.
Winegeart, 665 N.E.2d at 904. The court concluded that, when considering the
instruction as a whole, there was no reasonable likelihood that the jury interpreted the
instruction as shifting to the defendant the burden of persuasion of the intent element. Id.
The court found no error as to this issue. Id.
In an attempt to distinguish Winegeart, McDaniel argues that, because he objected
and preserved the issue, he does not have to establish fundamental error and only needs to
show that this instruction misstated the law or had the potential to mislead the jury.
McDaniel does not dispute that this instruction is a correct statement of the law and
argues only that the instruction was misleading because it does not describe an alternative
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to finding the defendant guilty. He asserts the instruction should have clarified that there
are other permissible inferences the jury could make or explicitly provided that the jury
could elect to make no inference at all.
Even if the Winegeart holding is not applicable,2 nothing about the language of
Court’s Final Instruction No. 8 is particularly confusing or complicated so as mislead the
jury. It did not require the jury to find McDaniel guilty if certain facts were proven.
McDaniel has not established that the trial court abused its discretion in tendering Court’s
Final Instruction No. 8 to the jury.
II. Sufficiency of the Evidence
Anthony argues that there is insufficient evidence of his intent to kill David. The
standard of review for claims of insufficient evidence is well settled. We do not reweigh
the evidence or judge the credibility of the witnesses, and we respect the jury’s exclusive
province to weigh conflicting evidence. Jackson v. State, 925 N.E.2d 369, 375 (Ind.
2010). We consider only the probative evidence and reasonable inferences supporting
the verdict and affirm if the probative evidence and reasonable inferences drawn from the
evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond
a reasonable doubt. Id.
Anthony contends that the evidence of his intent to kill David is insufficient
because David did not realize he had been stabbed until police told him to calm down and
2
The Winegeart court found “no error as to this issue.” Winegeart, 665 N.E.2d at 904. This seems to
mean it found no error, let alone fundamental error, regarding this instruction.
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because immediately after Anthony attacked David he retreated toward the door.
Anthony also points out that David’s injuries were not life threatening.
This is nothing more than a request to reweigh the evidence. There was evidence
that a few days before the incident, Anthony had threatened to kill David. On the night
of the incident, shortly after Sell declined to reconcile with Anthony, Anthony armed
himself with a knife, left his house, and went to David’s house. When Sell opened the
door, Anthony pushed his way into the apartment, backed David into a corner, told David
he was going to kill him, and stabbed David on his side. Although Anthony initially went
to the door when Sell called the police, Anthony moved toward David when McDaniel
and David began fighting and only left the apartment when Sell pushed him out. From
this evidence, the jury could infer that Anthony was acting with the specific intent to kill
David. There is sufficient evidence to sustain Anthony’s attempted murder conviction.
III. Anthony’s Sentence
Anthony argues that his aggregate sentence of forty-five years is inappropriate.
Indiana Appellate Rule 7(B) permits us to revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, we find that the sentence is inappropriate
in light of the nature of the offenses and the character of the offender. Although Rule
7(B) does not require us to be “extremely” deferential to a trial court’s sentencing
decision, we still must give due consideration to that decision. Rutherford v. State, 866
N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique
perspective a trial court brings to its sentencing decisions. Id. “Additionally, a defendant
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bears the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light in a given
case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),
we may consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence was suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
Referring to the nature of the offense, Anthony argues that he was upset about his
breakup with Sell and had been drinking when he went to confront Sell and David.
Anthony contends that he only stabbed David once and that David’s injuries were not life
threatening. We are not persuaded by this argument. A few days before the incident,
Anthony threatened to kill Sell, David, and himself. Then, after a night of drinking,
Anthony armed himself with a knife and went to David’s apartment with McDaniel.
Anthony entered David’s apartment, backed him into a corner, and stabbed him.
Although Anthony initially started to leave when Sell called the police, he went toward
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David again when McDaniel and David began to fight. Although David did not suffer
life threatening injuries, he had to undergo surgery for his injuries.
Anthony also argues that his character does not justify his sentence. Anthony,
however, has had regular contact with the criminal justice system since 1983. He has
juvenile delinquency adjudications and has been convicted of burglary, three counts of
invasion of privacy, two counts of resisting law enforcement, two counts of battery,
leaving the scene of an accident, criminal mischief, disorderly conduct, and harassment.
Anthony reported using marijuana on the night of the incident and admitted to using
methadone, speed, LSD, and inhalants in the past. Based on the nature of the offense and
the character of the offender, we cannot conclude that Anthony’s forty-five year sentence,
ten years of which are suspended, is inappropriate.
IV. McDaniel’s Sentence
McDaniel argues that the trial court erroneously concluded that attempted murder
is a non-suspendible offense pursuant to Indiana Code Section 35-50-2-2, which refers to
murder but not attempted murder. McDaniel acknowledges our supreme court’s holding
that “when Ind. Code § 35-50-2-2 speaks of Murder, it also refers to Attempted Murder.”
Haggenjos v. State, 441 N.E.2d 430, 434 (Ind. 1982). As McDaniel also acknowledges,
we are bound by the decisions of our supreme court. See Dragon v. State, 774 N.E.2d
103, 107 (Ind. Ct. App. 2002) (“Supreme court precedent is binding upon us until it is
changed either by that court or by legislative enactment.”), trans. denied. We may not
revisit this issue.
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Conclusion
Anthony and McDaniel have not established that the trial court abused its
discretion in instructing the jury. There is sufficient evidence to support Anthony’s
conviction, and he has not established that his sentence is inappropriate. McDaniel has
not established that his sentence should be further suspended. We affirm.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
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