Kevin Burrell v. State of Indiana ( 2013 )

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, Mar 12 2013, 9:11 am
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRIAN MAY GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
JONATHAN R. SICHTERMANN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KEVIN BURRELL, )
)
Appellant-Defendant, )
)
vs. ) No. 71A05-1208-CR-434
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable R. W. Chamblee, Jr., Judge
Cause No. 71D08-1111-FA-25
March 12, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Kevin Burrell appeals his convictions for two counts of Class A felony attempted
murder, two counts of Class C felony criminal recklessness, and a criminal gang activity
sentence enhancement. He contends that there is insufficient evidence to sustain those
convictions. We find that there is sufficient evidence to sustain his convictions and
therefore affirm.
Facts and Procedural History
On October 22, 2011, Josh Boyle, Gage Burger, Malcolm Purnell-Griffin, and
Amanda Heald hosted a party at their house in South Bend. The party grew throughout
the night until there were roughly 100 people in the house. The four hosts realized the
party was getting too large and that gang members were starting to show up, so they told
everyone that the party was over and that everyone had to leave. The gang members
present belonged to a gang known both as the Cash Out Boyz and Johnnyville.
One group of people outside, however, continued to demand that they be allowed
into the party. Purnell-Griffin spoke to them because he recognized many of them,
including Burrell, from school as a child. He explained that the party was over and that
they needed to go. The group continued to demand entrance to the house, and when
Purnell-Griffin continued to refuse, the group threatened to “air it out,” meaning that they
would “shoot[] it up.” Tr. p. 288-89. The group then left, shouting “Cash Out” several
times, an apparent reference to their membership in the Cash Out Boyz gang. After they
left, the hosts went inside and closed and locked the door.
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A short time later, the group returned to the house and began pounding on and
kicking the door. Boyle opened the door a crack to see who was outside and someone
forced the door open and began shooting. Boyle was hit with a graze wound to the chest.
Purnell-Griffin, who had been in the kitchen with Heald, ran to Boyle’s aid. Heald stayed
in the kitchen. Purnell-Griffin and Burger pushed the door closed, but the group
managed to fire more shots into the house, hitting Burger in the abdomen and shattering a
mirror in the living room. Purnell-Griffin recognized one of the shooters as Burrell.
The State charged Burrell with two counts of Class A felony attempted murder,
two counts of Class C felony criminal recklessness, and a criminal gang activity sentence
enhancement. A jury trial was held and Burrell was found guilty on all counts. The trial
court sentenced Burrell to thirty-five years on each attempted murder conviction, to be
served consecutively, six years on each criminal reckless conviction, to be served
concurrently to each other and concurrently to the second attempted murder conviction,
and an additional thirty-five years on the first attempted murder conviction for the
criminal gang activity enhancement, for an aggregate sentence of 105 years.
Burrell now appeals.
Discussion and Decision
Our standard of review with regard to sufficiency claims is well settled. In
reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence
or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.
App. 2010), reh’g denied, trans. denied. We consider only the evidence most favorable
to the verdict and the reasonable inferences draw therefrom and affirm if the evidence
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and those inferences constitute substantial evidence of probative value to support the
verdict. Id. Reversal is appropriate only when a reasonable trier of fact would not be
able to form inferences as to each material element of the offense. Id.I. Attempted Murder and Criminal Recklessness
Burrell contends that there is insufficient evidence to sustain both his attempted
murder and criminal recklessness convictions because the State failed to prove that he
was the shooter. We disagree.
A. Attempted Murder
Attempt is governed by Indiana Code section 35-41-5-1, which provides in
relevant part:
(a) A person attempts to commit a crime when, acting with the culpability
required for commission of the crime, he engages in conduct that
constitutes a substantial step toward commission of the crime. . . .
Murder is governed by Indiana Code section 35-42-1-1, which provides in relevant part:
A person who:
(1) Knowingly or intentionally kills another human being . . .
commits murder, a felony.
Therefore, in order to be guilty of attempted murder, the State had to prove that Burrell
took a substantial step toward the commission of murder when he shot Burger and Boyle
with the specific intent to kill each of them.
The evidence presented at trial was sufficient for a reasonable jury to conclude
that Burrell committed Class A felony attempted murder, as both Purnell-Griffin and
Burger identified Burrell as the shooter. Purnell-Griffin testified that he recognized
Burrell, someone he had known since childhood, as the shooter standing a few feet away
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from him on the front porch when he tried to close the door. Tr. p. 285, 291. Purnell-
Griffin also immediately identified Burrell as the shooter from a photo array without any
equivocation. Id. at 353, 359-60. Burger testified in court that he was “100 percent
positive” that Burrell was the shooter. Id. at 344. He also testified that he heard someone
on the porch say “Kevin, let’s go.” Id. at 337. The State therefore presented sufficient
evidence that Burrell took a substantial step toward the murders of Burger and Boyle by
shooting at them inside the house.
Burrell argues, however, that Burger was unable to identify him as the shooter at
the police station when looking at a photo lineup that contained Burrell’s photo. He also
argues that since Heald was unable to identify him as the shooter, the other witnesses
must not have been able to sufficiently identify him as well. However, this is essentially
asking us to reweigh the evidence, which we will not do. The evidence presented at trial
is sufficient to support Burrell’s two convictions for Class A felony attempted murder.
B. Criminal Recklessness
Class C felony criminal recklessness is governed by Indiana Code section 35-42-
2-2, which provides in relevant part:
(b) A person who recklessly, knowingly, or intentionally performs:
(1) an act that creates a substantial risk of bodily injury to another
person; . . .
commits criminal recklessness. Except as provided in subsection (c),
criminal recklessness is a Class B misdemeanor.
(c) The offense of criminal recklessness as defined in subsection (b) is:
* * * * *
(3) A Class C felony if:
(A) it is committed by shooting a firearm into an inhabited
dwelling or other building or place where people are likely to
gather; . . . .
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As discussed above, the State provided sufficient evidence to establish that Burrell shot
into the house where, in addition to Burger and Boyle, Purnell-Griffin and Heald also
were. This is therefore sufficient to support Burrell’s two convictions for Class C felony
criminal recklessness.
II. Criminal Gang Activity Enhancement
Burrell also contends that the State failed to provide sufficient evidence to sustain
his criminal gang activity sentence enhancement. We disagree.
Indiana Code section 35-50-2-15 governs this sentencing enhancement and
provides in relevant part:
(b) The state may seek . . . to have a person who allegedly committed a
felony offense sentenced to an additional fixed term of imprisonment if the
state can show beyond a reasonable doubt that the person knowingly or
intelligently:
(1) was a member of a criminal gang while committing the offense;
and
(2) committed the felony offense at the direction of or in affiliation
with a criminal gang.
At trial, the State provided testimony from Purnell-Griffin and South Bend Police
Department Officer Gene Eyster that Burrell was a member of the Cash Out Boyz or
Johnnyville gang, and testimony from Burger that Burrell was acting in affiliation with
the gang when he shot into the house. Purnell-Griffin testified that Burrell, who he had
known since childhood, was a member of Cash Out Boyz or Johnnyville. Tr. p. 284-85.
Additionally, Officer Eyster testified that Cash Out Boyz and Johnnyville were different
names for the same criminal gang. Id. at 420. He then testified that he was able to
confirm that Burrell was a member of the gang independently from Purnell-Griffin’s
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testimony. Id. at 420-21. Finally, Burger testified that the group outside, including
Burrell, were yelling “Cash Out” and “saying they were going to air the place out” when
they were told to leave the house. Id. at 331. This is sufficient evidence for a jury to
reasonably infer that Burrell was a member of a criminal gang and acting in affiliation
with a criminal gang when he shot into the house. We therefore uphold Burrell’s
criminal gang activity sentence enhancement.
Affirmed.
BAILEY, J., and BROWN, J., concur.
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