Tommy G. Hinds, III v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 24 2019, 7:20 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Thomas Lowe Curtis T. Hill, Jr.
New Albany, Indiana Attorney General of Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tommy G. Hinds, III, July 24, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2795
v. Appeal from the Orange Circuit
Court
State of Indiana, The Honorable Steven L. Owen,
Appellee-Plaintiff. Judge
Trial Court Cause No.
59C01-1609-F1-1076
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Tommy Hinds (Hinds), appeals his conviction for
attempted murder, a Level 1 felony, Ind. Code §§ 35-41-5-1(a); -42-1-1.
[2] We affirm.
ISSUES
[3] Hinds presents two issues on appeal, which we restate as the following:
(1) Whether the State presented sufficient evidence beyond a reasonable doubt
to support Hinds’ conviction; and
(2) Whether Hinds’ sentence is inappropriate in light of the nature of the offense
and his character.
FACTS AND PROCEDURAL HISTORY
[4] On September 22, 2016, Billy Craft (Craft) was involved in an altercation with
Crystal Ledgerwood (Ledgerwood), Hinds’ step-daughter. Hinds’ wife called
Hinds and informed him of the incident. In the company of his nephew, Perry
Clouse (Clouse), Hinds drove his truck from Lafayette, Indiana, to French Lick,
Indiana, for the purpose of “kick[ing] [Craft’s] ass.” (Transcript Vol. III, p.
175). Hinds had an unlicensed handgun in his pickup truck.
[5] Craft was in the living room when he heard the tires of a vehicle squeal in front
of his home. Craft walked outside to investigate. There was a pickup truck
parked in the middle of the roadway. Craft then saw Hinds and Clouse jump
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out of the truck with their shirts off and approach his home while yelling. Craft
retreated into his house. When Craft saw Hinds and Clouse return to the truck,
Craft went back outside. At that point, Hinds began shooting. A total of five
shots were fired, and one of the bullets hit Craft in the chest.
[6] Craft’s girlfriend, Emerald McCracken (McCracken) was inside Craft’s mobile
home taking a shower when the shooting occurred. When McCracken heard
the gun shots, she stepped out of the shower and got dressed before hurrying to
the door where she saw two men “standing outside the truck” with one “skinny
dude leaning over the cab of the truck” on the driver’s side, and “a big dude at
the front of the truck.” (Tr. Vol. III, p. 14). McCracken heard one more shot
and ran toward Craft. Craft informed her that he had been shot in the chest.
Hinds and Clouse immediately drove off. McCracken applied pressure on
Craft’s wound and called 911. Emergency trained technicians (EMTs) and the
police arrived within minutes. While an EMT was administering aid to Craft,
Craft repeatedly stated, “Tommy shot me.” (Tr. Vol. III, p. 58). After the
shooting, Hinds and Clouse drove back to Lafayette, “they wiped the
fingerprints off the gun,” and Hinds disposed of his gun by throwing it into
“Wildcat Creek.” (Tr. Vol. III, p. 96).
[7] On September 26, 2016, the State filed an Information, charging Hinds with
attempted murder, a Level 1 felony. The State later added a habitual offender
enhancement charge. A jury trial was held on September 11, 2018, through
September 13, 2018. At the close of the evidence, the jury found Hinds guilty
as charged. Hinds then pleaded guilty to the habitual offender enhancement.
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On October 24, 2018, the trial court conducted a sentencing hearing, and
sentenced Hinds to forty years for the Level 1 felony attempted murder
conviction, and enhanced that sentence by twenty years due to the habitual
offender finding. Hinds’ aggregate sentence is sixty years.
[8] Hinds now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
[9] Hinds claims that there was insufficient evidence to convict him of the Level 1
felony attempted murder. When reviewing a claim of insufficient evidence, it is
well-established that our court does not reweigh evidence or assess the
credibility of witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013).
Instead, we consider all of the evidence, and any reasonable inferences that may
be drawn therefrom, in a light most favorable to the verdict. Id. We will
uphold the conviction “‘if there is substantial evidence of probative value
supporting each element of the crime from which a reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt.’” Id.
(quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)).
[10] A person who “knowingly or intentionally kills another human being” commits
murder, a felony. I.C. § 35-42-1-1(1). Indiana’s attempt statute states: “A
person attempts to commit a crime when, acting with the culpability required
for commission of the crime, the person engages in conduct that constitutes a
substantial step toward commission of the crime. An attempt to commit a
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crime is a felony or misdemeanor of the same level or class as the crime
attempted. However, an attempt to commit murder is a Level 1 felony.” I.C. §
35-41-5-1(a).
[11] In the instant case, the State proceeded against Hinds under two theories—
Hinds as the principal and Hinds as an accomplice to the attempted murder of
Craft—and the jury was instructed on both theories. Hinds argues that none of
these State’s theories were supported by sufficient evidence beyond a reasonable
doubt.
A. Hinds as the Principal
[12] A conviction for attempted murder requires proof that the defendant had the
specific intent to kill. Spradlin v. State, 569 N.E.2d 948, 949 (Ind. 1991). It is
well-settled that the “[i]ntent 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.” Corbin v.
State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006). Furthermore, “discharging a
weapon in the direction of the victim is substantial evidence from which the
jury could infer intent to kill.” Id.
[13] On the theory that Hinds was directly liable as the principal in the commission
of the attempted murder, the State presented evidence that on the day of the
shooting, Hinds drove from Lafayette to Craft’s house in French Lick to
confront Craft, and that shortly after arriving, Hinds fired several shots toward
Craft’s home, with one of those bullets hitting Craft in the chest. Also, the State
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presented evidence that Craft identified Hinds as the shooter both immediately
after the incident, and again at Hinds’ jury trial. Moreover, the location of the
shell casings supported an inference that Hinds fired his gun toward Craft’s
home and at Craft. Detective Shane Staggs (Detective Staggs) testified that
during the course of his investigation, he determined that Hinds’ vehicle would
have been “facing toward French Lick, so the driver side would have been on
the left-hand side of the road, um, and that’s where the shell casings were
located on the left side of the road.” (Tr. Vol. III, p. 101).
[14] We find that the State presented sufficient evidence from which the jury could
have reasonably concluded that Hinds intended to kill Craft when he pointed
his gun directly at Craft and fired five shots. Therefore, Hinds’ claim that the
State did not present sufficient evidence beyond a reasonable doubt that he
acted as a principal fails. See Perez v. State, 872 N.E.2d 208, 213-14 (Ind. Ct.
App. 2007) (discharging a weapon in the direction of the victim coupled with
related circumstances sufficient to prove intent to kill in an attempted murder
case), trans. denied.
B. Hinds as an Accomplice
[15] Under Indiana’s accomplice liability statute, a person “who knowingly or
intentionally aids, induces, or causes another person to commit an offense
commits that offense[.]” I.C. § 35-41-2-4. To convict a defendant for attempted
murder under an accomplice liability also requires the State to prove the
defendant, “with the specific intent that the killing occur, knowingly or
intentionally aided, induced, or caused his accomplice to commit the crime of
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attempted murder.” Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000). Thus,
when the State seeks to convict a defendant of attempted murder on an
accomplice liability theory, it must prove: “(1) that the accomplice, acting with
the specific intent to kill, took a substantial step toward the commission of
murder, and (2) that the defendant, acting with the specific intent that the
killing occur, knowingly or intentionally aided, induced, or caused the
accomplice to commit the crime of attempted murder.” Id.
[16] At his jury trial, Hinds claimed that it was Clouse who shot Craft. Under the
theory of accomplice liability, the State presented evidence that Hinds drove
Clouse from Lafayette to French Lick to “kick [Craft’s] ass.” (Tr. Vol. III, p.
175). Hinds and Clouse were together when the shooting occurred, and there
was no evidence that Hinds ever opposed the crime. After the shooting, Hinds
and Clouse drove back to Lafayette, they wiped the fingerprints off the gun, and
Hinds threw the gun into a creek. Hinds’ conduct before, during, and after
Craft’s attempted murder, in conjunction with the other elements, suggests that
Hinds and Clouse were working together and demonstrates sufficient evidence
from which the jury could have concluded Hinds acted with the specific intent
that Craft be killed. Thus, we hold that the evidence readily supports Hinds
guilt as an accomplice to the attempted murder of Craft.
II. Inappropriate Sentence
[17] Hinds also contends that his sentence is inappropriate in light of the nature of
the offense and his character. Indiana Appellate Rule 7(B) empowers us to
independently review and revise sentences authorized by statute if, after due
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consideration, we find the trial court’s decision inappropriate in light of the
nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d
1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’s
actions with the required showing to sustain a conviction under the charged
offense, while the “character of the offender” permits a broader consideration of
the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);
Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears
the burden of showing that both prongs of the inquiry favor a revision of his
sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we
regard a sentence as appropriate at the end of the day turns on our sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and a myriad of other considerations that come to light in a given case.
Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate
sentence and how it is to be served.” Id.
[18] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). For his Level 1 felony attempted murder conviction, Hinds
faced a sentence of twenty to forty years, with an advisory term of thirty years.
I.C. § 35-50-2-4. In addition, Indiana Code section 35-50-2-8(i)(1) provides that
“[t]he court shall sentence a person found to be a habitual offender to an
additional fixed term that is between six (6) and twenty (20) years, for a person
convicted of murder or a Level 1 through Level 4 felony.” The trial court
imposed the maximum term of forty years for the attempted murder conviction,
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enhanced by twenty years due to the habitual offender finding. Hinds’
aggregate sentence is sixty years.
[19] Turning to the nature of his offense, after Hinds was informed that Craft had
been involved in an altercation with his stepdaughter, Hinds got into his vehicle
with his nephew Clouse and drove for more than two hours to confront Craft.
The altercation that ensued did not occur in the heat of the moment. As the
trial court noted, “[Hinds] had a lot of time to think about it. [He] had a lot of
time to contemplate the action to come up . . . [He] chose violence.” (Tr. Vol.
IV, p. 26). When Hinds and Clouse arrived at Craft’s house, Hinds and Clouse
intended to fight Craft, but when that did not happen, Hinds used his gun and
fired several shots at Craft. Craft was shot in the chest, and he sustained a
collapsed lung. Hinds’ sentence is certainly not inappropriate in light of the
nature of the offense.
[20] We conduct our review of a defendant’s character by engaging in a broad
consideration of his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App.
2014), clarified on other grounds on reh’g, 11 N.E.3d 571. The presentence
investigation report reveals that, at the time of sentencing in the present case,
Hinds had accumulated eleven criminal convictions, consisting of
misdemeanors and felony convictions. His misdemeanor convictions include
operating a vehicle while intoxicated, criminal trespass, battery resulting in
bodily injury, resisting law enforcement, possession of marijuana, and operating
a vehicle without ever receiving a license. His felony convictions include
burglary (multiple), theft (multiple), and resisting law enforcement. Not only
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did Hinds commit the current offense while on probation for another offense,
he also committed a new offense while he was out on bond for the present
offense.
[21] We reiterate that our task on appeal is not to determine whether another
sentence might be more appropriate; rather, the inquiry is whether the imposed
sentence is inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.
2013), trans. denied. Hinds has failed to carry his burden of establishing that his
aggregate sixty-year sentence is inappropriate in light of the nature of the
offense and his character.
CONCLUSION
[22] Based on the foregoing, we conclude that the State presented sufficient evidence
beyond a reasonable doubt to convict Hinds of the Level 1 felony attempted
murder offense, and his sixty-year aggregate sentence is not inappropriate in
light of the nature of the offense and his character.
[23] Affirmed.
[24] Bailey, J. and Pyle, J. concur
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