ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Jeffrey A. Modisett
Public Defender of Indiana Attorney General of Indiana
Lorraine L. Rodts K. C. Norwalk
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Roland W. Chamblee, Jr., Judge
Cause No. 71D08-9105-CF-224
The defendant, Steven Bethel, was convicted of two counts of attempted robbery,See footnote two
counts of robbery,See footnote and four counts of attempted murder.See footnote He was adjudicated
a habitual offender.
As imposed, the resulting sentences aggregated to 120 years.
In his appeal, the defendant challenges his convictions in Counts III and
VIII, two of the four attempted murder convictions, alleging insufficiency of evidence and
the erroneous giving of a jury instruction regarding use of a deadly weapon
as evidence of intent to kill. In addition, he challenges the habitual
offender enhancement, claiming that the trial court erred in not giving a habitual
offender phase instruction regarding the jurys role as judge of the law and
Record at 623. There was no testimony as to the length of
time that elapsed between the time Wrobel and Robaska went back down to
the ground and the time the shot was fired.See footnote No witnesses testified
as to the position of Crenshaws weapon or the direction it was pointed
when fired. There was no injury to either Robaska or Wrobel, nor
was there evidence of bullet damage to the ice machine or surrounding area.
No bullet was recovered.
Approximately ten minutes later, the defendant and Crenshaw entered the Burger Dairy store in South Bend and found three men inside. They robbed the three at gunpoint, taking cash from the register and a wallet from one of the men. During the robbery, Charles Flora attempted to enter the store, and the defendant pointed a gun at him. Flora ran to his van in the parking lot and called the police from his van. The defendant and Crenshaw came out of the store while Flora was still in the lot. The direct examination of Flora includes the following:
[Prosecutor] Did before you were shot at, did you see the
people that came out of the store? You said you saw them,
[Flora] When they both ran out of the store, they both looked directly at my van.
[Prosecutor] Did you see whether they had anything in their hands?
[Flora] They had a gun in their hand.
[Prosecutor] Both of them?
[Flora] Im not sure if both of them did. One I know did.
[Prosecutor] Was the gun pointed at you?
[Flora] When they ran out, no.
[Prosecutor] At some point in time, was it?
[Prosecutor] When was that?
[Flora] They was partly across the drive lot, and they pointed at my van, and I heard two or three shots. I know it was more than one shot.
[Prosecutor] What did you do?
[Flora] Well, I got down in my van and proceeded to go back up onto the lot because I didnt know what to do.
Record at 676-77. Neither Flora nor his van was hit, and no
bullets were ever found. Although Flora stated at trial that he did
not see and was "not sure" which of the two men shot at
him, record at 681, he testified that he gave a statement to police
within about an hour of the shooting in which he identified Crenshaw as
the person who shot at him.
See footnote As the defendant and Crenshaw attempted
to flee, they successively encountered two police officers and fired shots at each
As to the convictions for the attempted murders of RobaskaSee footnote and Flora, as noted by the trial court in its sentencing statement, the evidence reflects that the shots were fired by Crenshaw and not by the defendant. To support the convictions for these counts of attempted murder, we must first determine whether the evidence was sufficient to establish that Crenshaw, acting with the intent to kill, took a substantial step toward killing Robaska and Flora. See McGee v. State, 699 N.E.2d 264, 265-66 (Ind. 1998); Vance v. State, 620 N.E.2d 687, 690 (Ind. 1993). The intent to kill may be inferred from the deliberate use of a deadly weapon in a manner likely to cause death or serious injury. Wilson v. State, 697 N.E.2d 466, 476 (Ind. 1998); McEwen v. State, 695 N.E.2d 79, 90 (Ind. 1998). We have found sufficient evidence for conviction when the evidence indicates that a weapon was fired in the direction of the victim. See, e.g., Shelton v. State, 602 N.E.2d 1017, 1021 (Ind. 1992) (defendant pointed handgun at victim and shot him twice from distances of twelve and thirty feet); Owens v. State, 544 N.E.2d 1375, 1377 (Ind. 1989) (defendants fired in direction of occupied vehicle and shots passed through windshield); Brumbaugh v. State, 491 N.E.2d 983, 984 (Ind. 1986) (defendant fired shotgun at police helicopter and at officer who reported that shot whizzed by his head and landed within twelve feet).
Because the record is devoid of any probative evidence that Crenshaw was pointing his firearm at Robaska when he fired the weapon, we are compelled to conclude that Crenshaws intent to kill Robaska was not established beyond a reasonable doubt. There is no evidence as to the length of time between the moment Crenshaw was seen pointing his weapon at Robaska and the time the shot was heard. During this time, the sole testifying witness, Wrobel, had pulled Robaska to the ground, and the evidence does not permit a reasonable inference that Wrobel was able to observe Crenshaw continuously or that Crenshaws weapon remained pointed at Robaska during this interval.
In contrast, however, the evidence is sufficient under our standard of review to establish that Crenshaw fired his weapon in the direction of Flora and thus deliberately used a deadly weapon in a manner likely to cause death or serious injury. When Flora attempted to enter the store, the defendant pointed a gun at him. After running to his van, Flora observed Crenshaw point a gun at him and then heard two or three shots. It was after these shots were fired that Flora got down in his van. We find Floras testimony sufficient for a reasonable jury to infer that Crenshaw fired at and intended to kill Flora.
Because we find sufficient evidence of Crenshaws intent to kill Flora, we must consider the defendants claim that the evidence was insufficient to prove that he knowingly or intentionally aided, induced, or caused Crenshaw to commit the attempted murder of Flora. The accomplice liability statute permits a defendant to be found guilty as an accomplice without the jury finding that the defendant committed every element of the crime when that defendant "knowingly or intentionally aids, induces, or causes another person to commit an offense." Ind. Code § 35-41-2-4. For many crimes, it is sufficient to prove that a defendant either "knowingly" or "intentionally" performed a prohibited act. It is well settled, however, that a conviction for attempted murder requires proof of specific intent to kill. See Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991). The issue becomes then, what must be proven in order to show that the defendant "knowingly or intentionally" aided the commission of a crime requiring specific intent for conviction?
In light of Spradlin's requirement that attempted murder be established by proof of specific intent to kill, we find that, in order to establish that a defendant aided, induced, or caused an accomplice to commit attempted murder, the State must prove that the defendant, with the specific intent that the killing occur, knowingly or intentionally aided, induced, or caused his accomplice to commit the crime of attempted murder. Thus, to convict for the offense of aiding an attempted murder, the State 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.
Despite substantial evidence that the defendant was engaged in protracted criminal activity with Crenshaw, with both men carrying guns, threatening several people at gunpoint, and robbing or attempting to rob several people, we find the evidence insufficient to prove that the defendant had the specific intent to kill Flora or the specific intent that Crenshaw kill Flora.
Accordingly, we find the evidence insufficient to prove the defendant's conviction in Count III, the attempted murder of Robaska, and in Count VIII, the attempted murder of Flora.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.