Alain Kiiwon Powell, Jr. v. State of Indiana

FILED
Aug 18 2020, 2:19 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 19S-CR-527
Alain Kiiwon Powell, Jr.,
Appellant (Defendant),
–v–
State of Indiana,
Appellee (Plaintiff).
Argued: November 13, 2019 | Decided: August 18, 2020
Appeal from the Tippecanoe Circuit Court,
No. 79C01-1703-F1-4
The Honorable Sean M. Persin, Judge
On Petition to Transfer from the Indiana Court of Appeals,
No. 18A-CR-1812
Opinion by Justice Goff
Chief Justice Rush and Justices David, Massa, and Slaughter concur.
Goff, Justice.
Most everyone would agree that intentionally shooting at and killing
two persons (one immediately after the other) amounts to two separate
murders. Reasonable persons would also likely conclude that robbing a
person and then brutally beating and injuring that person (all in the same
encounter) amount to two separate criminal acts: robbery and aggravated
battery. Other scenarios, however, are less clear. Is the baker who sells
four loaves of bread on Sunday subject to four counts of violating the
“blue law” or only one? Does the theft of a single package in which
several articles of property belong to multiple persons amount to one
offense or multiple offenses? Does every punch thrown upon a single
victim amount to a separate act of battery? Are two pulls of the trigger one
attempted murder or two? Does it matter if the defendant aimed at two
victims rather than one? What if he had aimed at the same person but on
different days and at different locations?1
The answer to these questions depends on whether the applicable
statute permits the division or fragmentation of a defendant’s criminal
conduct into distinct “units of prosecution.” If the statute defines a
separate offense for certain discrete acts (e.g., each loaf of bread sold or
each victim harmed) within that course of conduct, the separate charges
(and corresponding convictions) may stand. But if the statute fixes no
separate penalty for each of these acts, and unless those acts are
1See Crepps v. Durden, 98 Eng. Rep. 1283, 1287 (1777) (holding that “[t]here can be but one
entire offence on one and the same day,” regardless of the number of loaves Crepps sold or
the number of customers to whom he sold those loaves); Furnace v. State, 153 Ind. 93, 94, 54
N.E. 441, 441 (1899) (explaining that, under the single-larceny doctrine, “the stealing of several
articles of property at one and the same time, as a part of the same transaction, can constitute
but one offense against the state, notwithstanding the fact that such articles belonged to
several owners”); Gomez v. State, 56 N.E.3d 697, 704 (Ind. Ct. App. 2016) (concluding that
defendant’s actions of grabbing the victim, slamming her into a wall, and pulling her hair
“were sufficiently compressed in terms of time, place, singleness of purpose, and continuity of
action” to support a single charge of Class A misdemeanor domestic battery rather than
three); Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807, 1817 (1997)
(describing the multiple attempted-murder scenarios).
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sufficiently distinct “in terms of time, place, [and] singleness of purpose,”
then a court may impose only a single conviction.
The defendant here, during an escalating confrontation, fired five to six
shots in rapid succession at two victims sitting in an adjacent vehicle,
seriously injuring one of them. In these circumstances, may a court convict
on one count of attempted murder (for the single act of shooting) or two
(one for each victim)? While our attempted-murder statute contains no
clear unit of prosecution, we find sufficient evidence of the defendant’s
dual purpose in firing his weapon: intent to kill both victims. Accordingly,
we hold that the defendant’s actions, despite their proximity in space and
time, amount to two distinct, chargeable offenses.
Facts and Procedural History
In March 2017, Travis Nichols purchased a Ford Taurus from Tyler
Howard. When Howard subsequently borrowed the car and failed to
return it, Travis and his companions drove to Howard’s house in an
apparent attempt to reclaim the vehicle. Expecting an altercation, Howard
summoned a group of friends, among whom included Alain Powell, Jr.
Upon arriving at the house, Powell found Travis parked just outside,
sitting in the driver’s seat of a black Cadillac. Travis’s wife, Davyn
Nichols, sat in the front passenger seat, while a third person, Troy
Clements, occupied the rear. Powell pulled up to the car’s front passenger
window and, while the parties exchanged heated words, began loading a
gun. As Travis threw the car into gear and started pulling away, Powell
fired five to six shots in rapid succession at the vehicle. Travis and
Clements emerged from the chaos virtually unscathed. Davyn, on the
other hand, having been struck by two bullets, barely escaped with her
life.
The State charged Powell with three counts of attempted murder (one
count for each victim), criminal recklessness, carrying a handgun without
a license, and several counts of battery. The jury found Powell guilty as
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charged except for the attempted murder of Clements.2 The trial court
entered judgment of conviction and sentenced Powell to an aggregate
term of sixty-four years (two consecutive thirty-two-year terms for each
attempted murder, along with a concurrent sentence of five years for the
unlicensed carrying of a handgun).
On appeal, Powell argued that his two attempted-murder convictions
violated the state constitutional protection against double jeopardy, and
that there was insufficient evidence showing his intent to kill Davyn.3
In a unanimous opinion, the Court of Appeals affirmed in part and
reversed in part. Powell v. State, 127 N.E.3d 1280 (Ind. Ct. App. 2019).
Citing the “ongoing animosity between the parties,” and the fact that
Powell had fired multiple times at Davyn’s side of the car, the panel found
sufficient evidence to support both attempted-murder convictions. Id. at
1283. But with “no additional evidence that Powell intended to kill a
specific victim or took additional steps to kill a specific victim,” the panel
concluded that both convictions violated double jeopardy. Id. at 1285. To
remedy this violation, the panel vacated Powell’s attempted-murder
conviction for Davyn. Id.
The State petitioned for transfer, which we granted, thus vacating the
Court of Appeals opinion. See Ind. Appellate Rule 58(A).
2According to both Powell’s counsel and the State at oral argument, the evidence suggested
that Powell was likely unaware of Clements’ presence in the back seat. Oral Arg. at 12:33–45,
19:08–33. Clements himself testified that his tinted window was up and that he was unable to
see into the other car. Tr. Vol. II, p. 87. See also Ex. 100 (showing the rear passenger tinted
window).
3Powell also argued (on appeal and again on transfer) that because transferred intent does not
apply to attempted murder, the trial court erred in giving the State’s proposed jury
instruction on that issue. 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” and, despite his intent to kill another, “the defendant may be found guilty of the
murder of the person who was killed.” Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998).
Because we find sufficient evidence of Powell’s intent to kill both victims (i.e., because there
was no “mistake or inadvertence”), we need not rely on transferred intent to affirm his
convictions on both counts.
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Standard of Review
We apply a de novo standard of review to questions of statutory law.
Johnson v. State, 87 N.E.3d 471, 472 (Ind. 2017). Sufficiency-of-the-evidence
claims, on the other hand, warrant a deferential standard, in which we
neither reweigh the evidence nor judge witness credibility. Perry v. State,
638 N.E.2d 1236, 1242 (Ind. 1994). Rather, we consider only the evidence
supporting the judgment and any reasonable inferences drawn from that
evidence. Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018). We will affirm a
conviction if there is substantial evidence of probative value that would
lead a reasonable trier of fact to conclude that the defendant was guilty
beyond a reasonable doubt. Id.
Discussion and Decision
The thrust of the parties’ arguments focuses on Powell’s act of firing
multiple shots at Travis’s car and whether his actions warrant separate
attempted-murder convictions. Powell argues that double jeopardy
prohibits his separate convictions based on his single act of shooting. The
State, on the other hand, contends that, when separate victims are
involved, there is no double jeopardy violation. Each pull of the trigger
amounted to “separate acts” designed to kill each person, the State insists,
and the fact that Powell “unleashed his violence at multiple people close
in time and space does not make it a single crime.” Appellee’s Br. at 21, 22;
Reply in Support of Trans. at 4.
We agree with the State that the separate victims here warrant Powell’s
dual convictions, but the reasoning through which we reach that decision
calls for careful explanation.
In part I of this opinion, we lay out the basic framework for analyzing
claims of multiplicity—a branch of substantive double jeopardy based on
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“the charging of a single offense in several counts.”4 Gerberding v. United
States, 471 F.2d 55, 58 (8th Cir. 1973). See also Taylor v. State, 929 N.E.2d 912,
920 (Ind. Ct. App. 2010) (using the same term in the same context). In Part
II, we apply this analytical framework to Powell, ultimately concluding
that the separate attempted-murder convictions may stand.
I. Whether the State may charge a single offense in
multiple counts depends on the crime’s statutory
definition and the defendant’s actions.
Substantive double-jeopardy claims principally arise in one of two
situations: (1) when a single criminal act or transaction violates multiple
statutes with common elements, or (2) when a single criminal act or
transaction violates a single statute and results in multiple injuries. Wadle
v. State, --- N.E.3d --- (Ind. 2020) (slip op. at 22–23). Our decision today in
Wadle implicates the former scenario; this case implicates the latter. The
question here is not whether one offense is included in the other
(attempted murder is clearly the same as attempted murder). See Hurst v.
State, 464 N.E.2d 19, 21 (Ind. Ct. App. 1984). Instead, we ask whether “the
same act may be twice punished” as “two counts of the same offense.”5
See Kelly v. State, 527 N.E.2d 1148, 1154 (Ind. Ct. App. 1988), aff’d, 539
N.E.2d 25, 26 (Ind. 1989).
Our legislature possesses the inherent authority, subject to certain
constitutional limitations, to define crimes and fix punishments. State v.
Clark, 247 Ind. 490, 495, 217 N.E.2d 588, 590–91 (1966). This prerogative
4Multiplicity is distinguishable from “duplicity,” which arises when “two or more distinct
offenses are charged in the same count of an indictment.” Woods v. State, 250 Ind. 132, 140, 235
N.E.2d 479, 484 (1968).
5While our courts have generally recognized this analytical distinction (as the cases cited
throughout this opinion illustrate), there are a few exceptions. See, e.g., Johnson v. State, 455
N.E.2d 932, 937 (Ind. 1983) (explaining that the “test for determining whether or not separate
sentences may be imposed” for two counts of attempted murder, one for each victim, “is
whether the charged offenses are themselves the same”); Henderson v. State, 534 N.E.2d 1105,
1106 (Ind. 1989) (citing Johnson to affirm defendant’s two attempted-battery convictions).
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extends to defining whether a single statutory offense will “subsist for a
definite period or cover successive, similar occurrences.”6 Hines v. State, 30
N.E.3d 1216, 1220 (Ind. 2015). In resolving a claim of multiplicity, our task
is to determine whether the statute permits punishment for a single course
of criminal conduct or for certain discrete acts—the “successive, similar
occurrences”—within that course of conduct. Id.; Taylor, 929 N.E.2d at 920.
Put differently, we ask whether—and to what extent—the applicable
statute permits the fragmentation of a defendant’s criminal act into
distinct “units of prosecution.”7 Peter Westen & Richard Drubel, Toward a
General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 111–12. See also Bell
v. United States, 349 U.S. 81, 82–83 (1955) (the legislative branch is
responsible for defining the proper “unit of prosecution”).
This inquiry involves a two-step process.
First, we review the text of the statute itself. If the statute, whether
expressly or by judicial construction, indicates a unit of prosecution, then
6For example, a person who, without the proper permit, conducts a “horse racing meeting at
which pari-mutuel wagering is permitted” commits a separate offense “[e]ach day of racing.”
Ind. Code § 4-31-13-3 (2019). “Each transaction” by a real estate appraiser who practices
without a license or certification “constitutes a separate offense.” I.C. § 25-34.1-8-12(a). “Each
year” during which a public-cemetery owner and manager neglects its maintenance duties
constitutes a “separate offense.” I.C. §§ 23-14-74-1, -2. And, under our arson statute, a person
who knowingly or intentionally damages property by fire or by explosive means “commits a
separate offense for each person who suffers a bodily injury or serious bodily injury.” I.C. §
35-43-1-1.
7Whereas the “elements of an offense define what must be proved to convict a defendant of a
crime,” a criminal statute’s “unit of prosecution defines how many offenses the defendant has
committed.” United States v. Rentz, 777 F.3d 1105, 1117 (10th Cir. 2015) (Matheson, J.,
concurring).
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we follow the legislature’s guidance and our analysis is complete.8 See
Hurst, 464 N.E.2d at 21 (whether “multiple offenses of the same statute are
committed during a single transaction” depends “on the definition of the
particular crime involved”). But if the statute is ambiguous, then we
proceed to the second step of our analysis.
Under this second step, a court must determine whether the facts—as
presented in the charging instrument and as adduced at trial—indicate a
single offense or whether they indicate distinguishable offenses. To
answer this question, we ask whether the defendant’s actions are “so
compressed in terms of time, place, singleness of purpose, and continuity
of action as to constitute a single transaction.” Walker v. State, 932 N.E.2d
733, 735 (Ind. Ct. App. 2010), cited with approval by Hines, 30 N.E.3d at 1219.
If the defendant’s criminal acts are sufficiently distinct, then multiple
convictions may stand; but if those acts are continuous and
indistinguishable, a court may impose only a single conviction.9 Armstead
v. State, 549 N.E.2d 400, 402 (Ind. Ct. App. 1990). Any doubt counsels
“against turning a single transaction into multiple offenses.” Duncan v.
8 Even before our decision in Wadle to overrule the Richardson same-evidence test, we would
still have treated Powell’s claim as a matter of statutory interpretation, not as a question of
constitutional dimension. See Mathews v. State, 849 N.E.2d 578, 580 (Ind. 2006) (resolving a
unit-of-prosecution case based on “the structure of the statute, not from constitutional
limitations”); Stafford v. State, 83 N.E.3d 721, 722 (Ind. Ct. App. 2017) (characterizing
defendant’s unit-of-prosecution claim as a “challenge based on statutory interpretation,”
rather than a “challenge based on constitutional prohibitions against double jeopardy”). See
also United States v. Cureton, 739 F.3d 1032, 1040 (7th Cir. 2014) (noting that the issue in unit-of-
prosecution cases “is one of statutory interpretation, not of constitutional reach”).
9While there are some exceptions, see supra, n.6, legislatures often fail to specify the unit of
prosecution, mainly to avoid creating either too broad or too narrow a rule, Jeffrey M.
Chemerinsky, Note, Counting Offenses, 58 Duke L.J. 709, 717 (2009). So, resolution of a
multiplicity claim often turns on this second step of our analysis. See, e.g., Duncan v. State, 274
Ind. 457, 464, 412 N.E.2d 770, 775–76 (1980) (affirming two convictions for unlawful dealing in
drugs where transactions took place on separate days but concluding that, under statute
articulating no distinct unit of prosecution, “a single sales transaction” involving multiple
drugs “between the same principals at the same time and place” would not justify multiple
convictions); Am. Film Distribs., Inc. v. State, 471 N.E.2d 3, 5, 6 (Ind. Ct. App. 1984) (holding
that, absent “clear [statutory] intent to fix separate penalties for each obscene film shown,”
defendant’s screening of “a single, continuous, uninterrupted exhibition of four obscene films
for one admission price” warranted conviction under a single count, not four).
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State, 274 Ind. 457, 464, 412 N.E.2d 770, 775 (1980) (quoting Bell, 349 U.S. at
84).
II. While our attempted-murder statute contains no
clear unit of prosecution, Powell’s criminal acts
indicate distinguishable offenses.
Applying our test to Powell’s multiplicity claim requires us to decide
two things: (1) whether the attempted-murder statute contains a distinct
unit of prosecution and, if not, (2) whether Powell’s firing of multiple
shots indicate distinguishable offenses or whether those consecutive acts
indicate a single, continuous offense.
A. The attempted-murder statute contains no distinct unit
of prosecution.
As with all questions of statutory interpretation, we first look to the
statute’s text, reading its terms in their plain and ordinary meaning.10
Prewitt v. State, 878 N.E.2d 184, 186 (Ind. 2007). A person commits the
offense of attempted murder, a Level 1 felony, when he or she, acting with
the requisite culpability, “engages in conduct that constitutes a substantial
step toward” the “intentional killing of another human being.” Ind. Code
§ 35-41-5-1(a) (2014); I.C. § 35-42-1-1(1).
With no express unit of prosecution, we turn to other language in the
statute to decipher its meaning.
10For purposes of our analysis here, we refer to the crime of attempted murder as a single
statutory offense. Of course, the offense technically consists of two statutes. See I.C. § 35-42-1-1
(2014) (murder); I.C. § 35-41-5-1 (attempt). But it exists only by reading one statute “in
conjunction with” the other. Kee v. State, 438 N.E.2d 993, 994 (Ind. 1982).
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1. The Framework for Statutory Analysis
In determining whether a single criminal statute permits multiple
punishments for multiple victims, Indiana courts (as with other
jurisdictions) often distinguish conduct-based statutes from result-based
statutes. Stafford v. State, 83 N.E.3d 721, 724 (Ind. Ct. App. 2017). See also
Wayne R. LaFave, Variations in Definitions of Crimes, 1 Substantive Crim. L.
§ 1.2(c) (3d ed. 2018) (discussing the same).11 A conduct-based statute,
under our criminal code, consists of an offense defined by certain actions
or behavior (e.g., operating a vehicle) and the presence of an attendant
circumstance (e.g., intoxication). Stafford, 83 N.E.3d at 724 (quoting Kelly,
527 N.E.2d at 1155). Under these statutes, the crime is complete once the
offender engages in the prohibited conduct, regardless of whether that
conduct produces a specific result (e.g., multiple victims). Id. (quoting
Kelly, 527 N.E.2d at 1155). The focus—or “gravamen”—of the statutory
offense is the defendant’s actions, not the consequences of those actions.
Id. at 723, 724 (quoting Kelly, 527 N.E.2d at 1155). To be sure, a specific
result or consequence (e.g., death or serious bodily injury) may enhance
the penalty imposed. Mathews v. State, 849 N.E.2d 578, 582 (Ind. 2006). But
“multiple consequences do not establish multiple crimes,” since the crime
may still be committed without the consequence. Id. See also Stafford, 83
N.E.3d at 724 (quoting Kelly, 527 N.E.2d at 1155) (“The multiple egregious
results do not increase the number of crimes, only the penalty.”). Indeed,
under a conduct-based statute, “a single discrete incident can be the basis
for only one conviction, no matter how many individuals are harmed.”
Paquette v. State, 101 N.E.3d 234, 239 (Ind. 2018).
11Federal and state courts alike apply variations of this analytical framework. See, e.g., Rentz,
777 F.3d at 1110 (observing that “the statute’s operative verb” focuses the court’s “attention
on how many times the defendant performed [the proscribed] act”); United States v.
Prestenbach, 230 F.3d 780, 783 (5th Cir. 2000) (analyzing only the “physical conduct of the
defendant” since the statute described the number of victims in ambiguous terms); State v.
Ramirez, 409 P.3d 902, 916–17 (N.M. 2017) (comparing state child-abuse statute’s emphasis on
both defendant’s conduct and multiple victims); Harris v. State, 359 S.W.3d 625, 630 (Tex.
Crim. App. 2011) (using similar analysis).
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A result-based statute, on the other hand, consists of an offense defined
by the defendant’s actions and the results or consequences of those
actions. “In crimes such as murder, manslaughter, battery and reckless
homicide, the gravamen of the offense is causing the death or injury of
another person, i.e., the result is part of the definition of the crime.” Kelly,
527 N.E.2d at 1155. In other words, “the resulting death, injury or
[offensive] touching is an element of the crime.” Mathews, 849 N.E.2d at
582. And that crime is complete so long as “the required actus reus and
mental state are present.” Id. Under these statutes, then, “where several
deaths or injuries occur in the course of a single incident,” the prohibited
offense has been perpetrated “several times over.” Kelly, 527 N.E.2d at
1155. “The separate victims represent different offenses because conduct
has been directed at each particular victim.”12 Id.
In short, crimes defined by conduct (rather than by consequence)
permit only a single conviction (with multiple consequences resulting in
enhanced penalties, not multiple crimes). But crimes defined by
consequence (rather than by conduct) permit multiple convictions when
multiple consequences flow from a single criminal act. With these
principles in mind, we now turn to our attempted-murder statute.
2. The Analytical Framework Applied
We first observe that the statute speaks nothing of a specific
consequence or result. Rather, the crime is complete when the defendant,
acting with the requisite culpability, “engages in conduct that constitutes a
substantial step toward” committing murder, regardless of whether those
actions result in actual harm to the victim or victims. I.C. § 35-41-5-1(a);
I.C. § 35-42-1-1(1). This reading of the statute finds support in our case
12Our research reveals at least one case in conflict with this rule. In Clem v. State, this Court
held that the killing of two or more persons by the same act amounts to a single offense. 42
Ind. 420, 429 (1873). “Where, by the discharge of a fire-arm, or a stroke of the same
instrument,” the Court explained, “an injury is inflicted upon two or more persons, or their
death is produced, there is but one crime committed.” Id. Considering our more recent
precedent, we deem Clem an outlier, and thus expressly overrule that case.
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law. See Zickefoose v. State, 270 Ind. 618, 623, 388 N.E.2d 507, 510 (1979)
(interpreting the attempt statute as focusing not on “the result of the
conduct” but rather “on the substantial step that the defendant has
completed”); Wethington v. State, 655 N.E.2d 91, 96 (Ind. Ct. App. 1995)
(noting that it makes no difference “whether the act, the substantial step
taken toward the commission of murder, results in any injury whatsoever,
so long as it is coupled with the intent to kill”).
Based on this precedent, it’s reasonable to conclude that attempted
murder is a conduct-based crime—a crime in which “a single discrete
incident can be the basis for only one conviction,” no matter the number
of victims. See Paquette, 101 N.E.3d at 239. Accord Kelly, 527 N.E.2d at 1155
(OWI is a completed crime when the intoxicated person operates the
vehicle, even if no harm results); Scuro v. State, 849 N.E.2d 682, 687 (Ind.
Ct. App. 2006) (holding that, because the statute focused on the
defendant’s actions rather than the harm to each victim, “a defendant may
not be convicted of more than one count of dissemination of matter
harmful to minors based on one occurrence, even if there was more than
one victim”).
Still, other interpretations of the statute pull us in the opposite
direction. Despite the lack of a specific result or consequence, the statute
clearly contemplates a victim (or potential victim) by use of the direct
object “another human being.” And by referring to the victim in the
singular, this language suggests that each victim in an attempted murder
calls for separate punishment. Our courts have held as much under
different statutes. See, e.g., Brown v. State, 912 N.E.2d 881, 896 (Ind. Ct.
App. 2009) (holding that, under the child pornography statute, the listing
of objects in the singular indicates a legislative intent to criminalize each
possession of child pornography as a distinct violation).
To be sure, a reference in the singular to the statute’s direct object
doesn’t always indicate a clear intent to impose separate punishments for
each corresponding victim. By the legislature’s own rules, a statute’s use
of language in the singular “may be also applied to the plural of persons
and things.” I.C. § 1-1-4-1(3) (2019). See also Off. of Code Revision, Legis.
Servs. Agency, Drafting Manual for the Indiana General Assembly 10 (2012),
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http://iga.in.gov/legislative/2020/publications/bill_drafting_manual/#docu
ment-ae6c0119 [https://perma.cc/Q44J-JKUZ] (urging use of the “singular
instead of the plural, because singular words apply to several persons or
things as well as to one person or thing”). But had the legislature instead
used “human beings” or “any human being,” the statute arguably would
have contemplated only a single offense despite harm to multiple victims.
See Mathews, 849 N.E.2d at 585 (noting that, in defining felony arson, the
“legislature chose to use the phrase ‘endanger human life’ and not
‘endanger a person,’” suggesting that “endangerment of multiple persons
without more, entails no additional consequences beyond endangerment
of a single person”).
The statute’s contemplation of a victim, whether actual or potential,
suggests that attempted murder is a result-based crime: rather than
simply showing the defendant intentionally committed criminal conduct
that could have resulted in death, the State must show that the defendant
intended for his conduct to produce such a result. As this Court has noted,
the defendant’s “attempt” in attempted murder “must be to effect the
proscribed result and not merely to engage in proscribed conduct.” Smith
v. State, 459 N.E.2d 355, 358 (Ind. 1984) (emphasis added). See also Ramsey
v. State, 723 N.E.2d 869, 871 (Ind. 2000) (same).
These alternative readings of our attempted-murder statute reveal
equally legitimate ways of thinking about the statute’s unit of prosecution:
either by conduct or by result. And when a statute permits more than one
reasonable interpretation, we consider that statute ambiguous. Day v.
State, 57 N.E.3d 809, 813 (Ind. 2016). So, under our test, unless the facts
show that Powell’s multiple gunshots amounted to distinguishable
offenses, we conclude that the statute permits the prosecution for only a
single criminal offense. See Duncan, 274 Ind. at 464, 412 N.E.2d at 775–76
(applying rule of lenity).
B. Powell’s criminal acts indicate two distinguishable
offenses.
This step of our analysis requires us to decide whether Powell’s
criminal acts amount to a single offense or whether they indicate several
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distinguishable offenses. To answer this question, we look to whether
those acts are “so compressed in terms of time, place, singleness of
purpose, and continuity of action as to constitute a single transaction.”
Walker, 932 N.E.2d at 735.
1. Pitfalls in the Analytical Framework
We pause first to consider the “elusive nature of attempting to define
precisely” when otherwise independent criminal acts “coalesce into a
single offense.” Nunn v. State, 695 N.E.2d 124, 125 (Ind. Ct. App. 1998). See
also Jeffrey M. Chemerinsky, Note, Counting Offenses, 58 Duke L.J. 709,
726–28 (2009) (outlining the flaws in this approach). To be sure, there may
be some cases in which—intuitively, at least—the question is an easy one.
See Nunn, 695 N.E.2d at 125 (rejecting the idea that a defendant, having
fully discharged an automatic weapon with a fifty-round clip in “one
burst,” could be charged with and convicted of fifty attempted murders of
a single person). But, at the end of the day, there’s really “no way to make
sense out of the notion that a course of conduct is ‘really’ only one act,
rather than two or three, or, indeed, as many as one likes.” Westen &
Drubel, Toward a General Theory of Double Jeopardy, supra, at 114.
Still, this analytical step is a necessary one. In Indiana, two or more
criminal offenses “may be joined in the same indictment or information,”
whether those offenses “are of the same or similar character, even if not
part of a single scheme or plan,” or whether they’re “based on the same
conduct or on a series of acts connected together or constituting parts of
a single scheme or plan.” I.C. § 35-34-1-9(a) (emphasis added). Despite
the lack of mandatory joinder under our criminal code, when “two or
more charges are based on the same conduct or on a series of acts
constituting parts of a single scheme or plan, they should be joined for
trial,” otherwise the prosecutor risks having those charges dismissed on
subsequent prosecution. Williams v. State, 762 N.E.2d 1216, 1219 (Ind. 2002)
(quoting State v. Wiggins, 661 N.E.2d 878, 880 (Ind. Ct. App. 1996)). See I.C.
§ 35-34-1-10(c) (permitting a “defendant who has been tried for one (1)
offense” to “move to dismiss an indictment or information for an offense
which could have been joined for trial with the prior offenses”).
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Importantly, while this statutory framework may incentivize the joinder
of criminal offenses in a single trial, the prosecutor’s decision to proceed
that way “does not prove that [the defendant’s] criminal actions arose out
of a single episode of criminal conduct.” Slone v. State, 11 N.E.3d 969, 973
(Ind. Ct. App. 2014). Hence, the need for our analysis of the facts.
Of course, the legislature is free to define whether a single statutory
offense will “subsist for a definite period or cover successive, similar
occurrences.” Hines, 30 N.E.3d at 1220. See supra, n.6. And when it does,
we simply follow that guidance and our analysis is complete. But without
such direction, we’ve long been reluctant to permit the fragmentation of a
single offense into multiple crimes. See Jackson v. State, 14 Ind. 327, 328
(1860) (“The state cannot split up one crime and prosecute it in parts.”);
Snodgrass v. State, 273 Ind. 148, 150, 406 N.E.2d 641, 643 (1980)
(acknowledging the same principle).
With these qualifications in mind, we proceed to our analysis of the
facts and circumstances here.
2. The Analytical Framework Applied
According to the State, each pull of Powell’s trigger amounted to
“separate acts” designed to kill each person in Travis’s car. Appellee’s Br.
at 22. And the fact that Powell “unleashed his violence at multiple people
close in time and space,” the State insists, “does not make it a single
crime.” Reply in Support of Trans. at 4. We disagree. Although Powell
stands convicted of only two attempted murders (one for each victim),
under the State’s theory, he could have faced “five or six” counts of
attempted murder for each victim (one for each shot fired), potentially
culminating in a 480-year sentence upon conviction of all twelve counts.
See I.C. § 35-50-2-4(b) (2014) (specifying a maximum sentence of forty
years for conviction of a Level 1 felony).13 For good reason, our courts
13The absurdity of such a scenario comes into even sharper relief when we consider the fact
that, had he managed to kill his intended victims, Powell would have faced a maximum term-
of-years sentence of only 130 years in prison. See I.C. § 35-50-2-3(a).
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have rejected such a theory. See Nunn, 695 N.E.2d at 125. See also Benson v.
State, 73 N.E.3d 198, 203 (Ind. Ct. App. 2017) (holding that, where the
defendant shot at an officer twice during a continuous ninety-second
pursuit, the State could charge only a single count of attempted murder,
not two).
Space and time, however, aren’t the only elements we factor into our
analysis. For multiple criminal acts to be continuous and
indistinguishable, Powell must also have committed those acts with a
“singleness of purpose.” See Walker, 932 N.E.2d at 735. So long as there’s
sufficient evidence he possessed the requisite mens rea to kill both victims
by firing his weapon multiple times, both convictions may stand.14 See
O’Connell v. State, 742 N.E.2d 943, 950 (Ind. 2001) (finding evidence that
defendant, during a single transaction, fired two successive shots at two
victims standing side-by-side sufficient to prove that he “harbored the
specific intent to kill [them] both”).
Powell insists that the evidence supports only his conviction for the
attempted murder of Travis. Because Travis was the only person with
whom he had a beef, and because he had never met Davyn, Powell
contends that his conviction for the attempted murder of Davyn lacks
sufficient evidentiary support. Davyn, he insists, was simply an
unfortunate bystander—an inadvertent victim caught in the line of fire.
We disagree with Powell’s characterization of facts and circumstances
surrounding his commission of the crimes.
Having learned of the impending confrontation over the Taurus,
Powell drove to Howard’s house and stopped his car parallel to the black
Cadillac parked just outside. With his window adjacent to that of Davyn’s,
and with Davyn in plain sight, Powell asked his presumptive nemeses
whether they “had a problem” with Howard. Tr. Vol. II, p. 99. As the
animosity crescendoed, Powell loaded his gun, aimed it toward the
14When there’s more than one victim, the element of intent is critical to our analysis.
Otherwise we risk either over-punishment (where the defendant intended to harm only one
victim) or under-punishment (where the defendant intended to harm each victim).
Indiana Supreme Court | Case No. 19S-CR-527 | August 18, 2020 Page 16 of 19
occupied vehicle, and discharged five to six shots. Two of these shots
struck Davyn, nearly killing her. This evidence—the animosity between
the parties, Powell’s confrontational demeanor, and his firing of multiple
shots at an occupied vehicle—is sufficient to prove beyond a reasonable
doubt that Powell fired his weapon multiple times with the dual purpose
of intentionally killing both Travis and Davyn.15 See Perez v. State, 872
N.E.2d 208, 214 (Ind. Ct. App. 2007) (holding that evidence of defendant
firing multiple shots into a car occupied by several passengers, along with
evidence of “an ongoing altercation” between the parties, was sufficient to
prove attempted murder). See also Simmons v. State, 999 N.E.2d 1005, 1008,
1010–11 (Ind. Ct. App. 2013) (holding that defendant’s knowledge of
several police officers in the direction in which he fired a “barrage” of
gunfire was sufficient to support multiple attempted-murder convictions).
To be sure, this Court has cited the “drive-by shooting” as “the
paradigm problematic attempted murder case.” Richeson v. State, 704
N.E.2d 1008, 1010 (Ind. 1998). In those situations, it’s “often unclear
whether the defendant intended to murder or to batter, whether he knew
of a high probability of death or a touching, or whether he simply
recklessly disregarded either.” Id. But this isn’t a case in which the
defendant fired blindly into a group of individuals. To the contrary,
Powell directly engaged with his victims, both of whom sat facing him,
only feet away, through an open car window. And as the conversation
grew heated, Powell—with calculated deliberation—drew his weapon,
loaded it, and fired at the car as it began pulling away—all without
reciprocal provocation of violence.
Nor is this a case, as Powell insists, in which a defendant, “while
intending to kill one person, mistakenly kills another through
15Because of the “stringent penalties for attempted murder,” and because of the difficulty
often involved in proving this offense, we construe the attempt statute as imposing a
heightened mens rea to convict the defendant. Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015).
Under this Court’s Spradlin Rule, the State must prove beyond a reasonable doubt that the
defendant committed the offense intentionally, not just knowingly or recklessly. Richeson v.
State, 704 N.E.2d 1008, 1009–10 (Ind. 1998) (citing Spradlin v. State, 569 N.E.2d 948, 950 (Ind.
1991)).
Indiana Supreme Court | Case No. 19S-CR-527 | August 18, 2020 Page 17 of 19
inadvertence, or bad aim.” See Appellant’s Br. at 15. In other words,
Davyn did not simply “g[e]t in the way” as Powell shot at Travis. See
Appellant’s Resp. to Trans. at 8. Rather, Powell sprayed the side of the
Cadillac, firing multiple shots at close range, fully aware of the vehicle’s
occupants. See Tr. Vol. III, pp. 88–92 (documenting the path of bullet holes
along the side of the car). The prosecutor emphasized these facts in
closing, urging the jury “to apply common sense and decide what
[Powell] was thinking” when, knowing that Davyn and Travis were inside
the car, he fired “indiscriminately” at them both.16 Id. 230–31.
Based on this evidence and these arguments, along with the separate
attempted-murder charges, the jury could have reasonably inferred that
Powell intended to kill both Travis and Davyn. Indeed, if “intent to kill
may be inferred from the deliberate use of a deadly weapon in a manner
likely to cause death or serious injury,” then there’s no issue with the jury
inferring Powell’s intent to kill Davyn and intent to kill Travis by directly
“firing a gun in the[ir] direction.” See Henley v. State, 881 N.E.2d 639, 652
(Ind. 2008).
Conclusion
In sum, we hold that, while our attempted-murder statute contains no
clear unit of prosecution, the multiple shots Powell fired—despite their
proximity in space and time—amount to two chargeable offenses based on
his dual purpose of intent to kill both Travis and Davyn. We thus affirm
the trial court and order the reinstatement of Powell’s attempted-murder
conviction for Davyn.
Affirmed.
16Powell emphasizes the fact that he had never met Davyn, suggesting that he lacked the
requisite intent to kill her. But Powell had never met Travis either. See Tr. Vol. II, pp. 130, 135.
And Travis himself testified that he had no score to settle with Powell. Id.
Indiana Supreme Court | Case No. 19S-CR-527 | August 18, 2020 Page 18 of 19
Rush, C.J., and David, Massa, and Slaughter, JJ., concur.
ATTORNEY FOR APPELLANT
Bruce W. Graham
Graham Law Firm P.C.
Lafayette, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
Angela N. Sanchez
Assistant Section Chief, Criminal Appeals
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
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