MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Sep 05 2017, 5:57 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Philip R. Skodinski Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Majorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael J. Smith, September 5, 2017
Appellant-Defendant, Court of Appeals Case No.
71A05-1608-CR-1883
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1509-F5-188
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 of
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Level 5 felony criminal recklessness. In this appeal, Smith claims the evidence
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.
Facts and Procedural Posture
[3] Around 2:30 am on August 1, 2015, three vehicles pulled into 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 green GMC
Suburban driven by Stephen Johnson (“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 Johnson1 (“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.
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Becton who put the call on speaker. 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 stopped 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 driver 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 the 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. The Becton-driven Lancer then entered the
intersection, and once there, Smith fired five shots at the rear of the 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.
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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 recklessness 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 jury trial commenced
on June 14, 2016. Prior 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, 2016, 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 suspended sentence to probation following release. Smith now timely
appeals.
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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 and 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 will 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, the State needed to prove, beyond a reasonable doubt,
that Smith engaged in conduct constituting 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 deliberate
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use” of the deadly weapon. Id. at 756. Discharging a weapon in the direction 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 defendant fired three to five rounds out of his moving Acura
towards a Chevy Malibu. 872 N.E.2d 208, 210 (Ind. Ct. App. 2007), trans.
denied. After the shots were fired, the defendant discussed the shooting and told
others he was sure he had hit the car. Id. On appeal, the defendant 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 substantial evidence for the jury to conclude the defendant’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, Bryant 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 Becton pulled up alongside and behind the
Suburban at the Intersection. Bryant then fired six shots into the passenger side
of the Suburban and Stephen attempted to turn left and flee. Before Stephen
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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 support 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 instructions that were given.”
Id. at 763–64. The second element listed above is most applicable to the case
before us which our supreme court 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).
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[17] A defendant in a criminal case is entitled to have the jury instructed on any
theory 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 probative value 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 of 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 tendered the following 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:
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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 withdraws 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.
“Deadly 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 causes: 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 the 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, pp. 20–21. Smith argued that the instruction was
justified because Irving testified that when Stephen exited the Suburban, she
was afraid he might shoot.3
3
There is conflicting testimony here as Stephen testified he never fully exited the Suburban, Tr. Vol. II, p.
130, and when confronted with conflicting evidence we consider 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 consideration, the trial court refused to give the tendered 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 then him acting in self-defense.” Final Statements 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, 834 (Ind. Ct. App. 2000), trans. denied.
Therefore, we conclude that the trial court did not abuse its discretion when it
refused 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 murder
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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.
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