Omar Davis v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
Dec 31 2015, 9:04 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael G. Moore Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Omar Davis, December 31, 2015
Appellant-Defendant, Court of Appeals Case No.
49A05-1506-CR-592
v. Appeal from the Marion Superior
Court, Criminal Division 5
State of Indiana, The Honorable Grant Hawkins,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G05-1412-F1-55698
Bailey, Judge.
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Case Summary
[1] Omar Davis (“Davis”) was convicted of two counts of Attempted Murder, as
Level 1 felonies,1 for the shootings of George Powell (“Powell”) and Fred
Stokes (“Stokes”). Davis appeals one of his convictions, presenting the sole
issue of whether there was sufficient evidence to support his conviction for the
attempted murder of Powell. We affirm.
Facts and Procedural History
[2] On the evening of December 2, 2014, Powell picked up two acquaintances,
Davis and Devin Gilbert (“Gilbert”), from the Family Dollar at 30th Street and
Keystone Avenue in Indianapolis. Powell then drove the group to Stokes’s
house, one half of a double located on the corner of Michigan and Oxford
Streets. Powell knew Stokes because Stokes was a friend of Powell’s father
(Stokes called Powell “nephew”). The group went to Stokes’s house because
Gilbert “wanted to get his nose dirty” (Tr. 46), that is, use cocaine, and Powell
knew he could get drugs from Stokes’s next door neighbor.
[3] When the group arrived, they went to Stokes’s back door. After Powell
vouched for Davis and Gilbert, Stokes let all three men inside. Powell then
1
Ind. Code §§ 35-42-1-1(1) & 35-41-5-1 (2014).
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walked through the house to the front door, exited, and went next door to buy
drugs. He was gone for approximately four to five minutes.
[4] While Powell was gone, Davis and Gilbert each pulled out a handgun and
pointed it at Stokes. Stokes thought one gun looked like a .380 or a 9 mm
pistol, and the other looked like a 9 mm. Davis and Gilbert ordered Stokes to
the ground, searched his pockets, and removed money, a wallet, and his watch.
Davis then went upstairs while Gilbert held Stokes at gunpoint. As Davis came
back downstairs, the men heard a knock at the door. Gilbert ordered Stokes to
crawl to the front door and then stand up. Stokes asked who was at the door,
and Powell responded. Davis told Stokes: “you say anything I will kill you.”
(Tr. 107.) Gilbert said: “if you say anything you’re dead.” (Tr. 107.)
[5] Stokes then opened the door and yelled “run nephew run” (Tr. 51) as he pushed
Powell backwards and ran. Stokes heard a gunshot and was hit in the right
shoulder blade and fell down. When he got up, he saw Davis and Gilbert
pointing guns at him. He ran toward Michigan Street and heard multiple
gunshots ring out from what sounded like two different guns. Stokes eventually
knocked on a neighbor’s door and yelled for them to call the police. He then
circled back to his house, where he found Powell moaning on the front porch.
Powell had been shot twice in the head and once in the arm.
[6] Law enforcement and emergency personnel arrived quickly, and Stokes and
Powell were transported to the hospital. Stokes was treated in the emergency
room and discharged that night. Powell was hospitalized for three weeks,
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during which he could not speak and was partially paralyzed on his right side.
At the time of trial, his right arm was still injured and he had difficulty with
speech and thought.
[7] During the ensuing investigation, a crime scene specialist from the Indianapolis
Metropolitan Police Department photographed multiple bullet holes in the front
door of Stokes’s house. She also recovered eight spent cartridge cases from the
living and dining rooms: six .380 auto and two 9 mm Lugar caliber cartridge
cases. A forensic ballistics examiner determined that the six .380 caliber
cartridge cases were fired from the same gun, and that a different gun fired both
of the 9 mm cartridge cases.
[8] On December 19, 2014, the State charged Davis with two counts of Attempted
Murder, as Level 1 felonies (“Count 1” for Powell and “Count 2” for Stokes);
Robbery Resulting in Serious Bodily Injury, as a Level 2 felony2 (“Count 3”);
and Unlawful Possession of a Firearm by a Serious Violent Felon, a Level 4
felony3 (“Count 4”).
[9] A jury trial was held on May 18 and 19, 2015, at the conclusion of which Davis
was found guilty of Counts 1 and 2 and not guilty of Count 3. The State moved
to dismiss Count 4. On May 29, 2015, Davis was sentenced to thirty-five years
2
I.C. § 35-42-5-1.
3
I.C. § 35-47-4-5(c).
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on Count 1 and thirty years on Count 2, with the sentences to be served
consecutively.
[10] Davis now appeals his conviction for the attempted murder of Powell.
Discussion and Decision
[11] Our standard of review for sufficiency of the evidence claims is well settled.
We consider only the probative evidence and reasonable inferences supporting
the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess
the credibility of witnesses or reweigh evidence. Id. We will affirm the
conviction unless “no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726
N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may
reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens
v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).
[12] A person who knowingly or intentionally kills another human being commits
murder. I.C. § 35-42-1-1. 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.
I.C. § 35-41-5-1. “However, our supreme court has emphasized the importance
of requiring specific intent to kill before a defendant can be convicted of
attempted murder, despite that the culpability requirement for murder includes
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the lesser standard of ‘knowingly.’” Perez v. State, 872 N.E.2d 208, 211 (Ind. Ct.
App. 2007), trans. denied.
[13] The State charged that on or about December 2, 2014, Davis “did attempt to
commit the crime of Murder, which is to intentionally kill another human
being, namely: George Powell, by engaging in conduct, that is: shooting a
deadly weapon that is, a handgun, at and against the person of George Powell,
with the specific intent to kill George Powell, which conduct constituted a
substantial step toward the commission of said crime of Murder[.]” (App. 25-
26.)
[14] Davis concedes that the State presented sufficient evidence to support his
conviction for the attempted murder of Stokes because there was evidence that
Davis and Gilbert “pointed guns at Stokes, hit him, threatened him and shot at
him.” (Appellant’s Br. 4.) However, he argues that the State “failed to
introduce similar evidence with respect to Powell,” and thus there was
insufficient evidence that he acted with specific intent to kill Powell.
(Appellant’s Br. 7.) Davis also argues that because there were multiple
shooters, “[t]he jury was left to speculate who shot whom, which is insufficient
to sustain a conviction.” (Appellant’s Br. 4.)
[15] With respect to identification, Stokes saw both Davis and Gilbert with
handguns just before he and Powell were shot. Multiple shots were fired.
Stokes was hit once and Powell was hit three times. After the shooting, police
recovered eight spent cartridge casings from the crime scene. A forensic
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ballistic examiner determined the casings were fired from two different
handguns. This supports the inference that Davis was one of two active
shooters in the home when Powell and Stokes were shot. Based on this
evidence and the resulting reasonable inferences supporting the verdict, a
reasonable jury could have found that Davis shot a deadly weapon at Powell.
See Houston v. State, 730 N.E.2d 1247, 1249-50 (Ind. 2000) (holding there was
sufficient evidence to support defendant’s conviction for murder where there
were multiple shooters, ballistics experts testified that four to six guns were used
in the shooting, the victim was shot multiple times, and several of the wounds
would have been fatal).
[16] With respect to intent, Indiana courts have held:
Intent 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. Gall v. State, 811 N.E.2d 969, 975 (Ind. Ct. App. 2004).
Intent to kill may be further established by a defendant’s use of a
deadly weapon against the victim coupled with an announced
intention to kill. Schilling v. State, 268 Ind. 534, 536, 376 N.E.2d
1142, 1143 (1978). Further, our supreme court held that
discharging a weapon in the direction of a victim is substantial
evidence from which the jury could infer intent to kill. Leon v.
State, 525 N.E.2d 331, 332 (Ind. 1988).
Corbin v. State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006).
[17] Here, before Stokes opened the door, Stokes asked Powell to identify himself.
After Stokes opened the door, he yelled “run nephew run” (Tr. 51), further
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confirming Powell’s identity. Therefore, Davis was aware that Powell was on
the other side of the door when he pointed a gun and fired in Stokes’s direction.
Moreover, the majority of the gunshots came after Stokes was shot in the back,
supporting the inference that the shooters continued to shoot in Powell’s
direction after attempting to murder Stokes. The State therefore presented
sufficient evidence that Davis had specific intent to kill Powell.
Conclusion
[18] There was sufficient evidence to support Davis’s conviction for the attempted
murder of Powell.
[19] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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