ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANN M. SUTTON STEVE CARTER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana ELLEN H. MEILAENDER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
KUNTA GRAY, )
vs. ) No. 49A04-0204-CR-196
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-0012-CF-220679
April 22, 2003
OPINION - FOR PUBLICATION
A jury convicted Kunta Gray of felony murder,
a Class A
felony, and unlawful possession of a firearm by a serious violent felon,
Class B felony. The trial court also adjudicated Gray an habitual offender.
He appeals, raising the following two restated issues:
I. Whether the trial courts enhancement of his felony murder sentence based upon the
habitual offender finding was erroneous because a prior dealing in cocaine conviction was
used to establish both the habitual offender status and that he was a
serious violent felon.
II. Whether Tracy Avants testimony that Gray shot at him was sufficient to establish
that he attempted to murder Avant.
FACTS AND PROCEDURAL HISTORY
The evidence most favorable to the judgment is that on November 16, 2000,
Gray arranged to purchase a large quantity of marijuana from Greg Jones at
an Indianapolis residence.
Joness friend, Avant, was at the house when Gray
and an unidentified man arrived to buy the drugs. Jones retrieved a
brown trash bag from his vehicle parked outside and then escorted Gray and
the other man to the rear of the house, while Avant remained in
the front living room area. A few minutes later, the unidentified man
returned to the living
room, hit Avant in the head with a handgun, and told him to
get on the floor, stating, [T]his is a robbery.
Transcript at 56.
Avant heard a number of gunshots from the back area of the
home. Upon hearing the shots, the unidentified man stood and ran out
of the house. Avant saw Gray stumble from the rear of the
house and out the door. As Avant stood in or near the
doorway, Gray pointed and fired his handgun at Avant, but missed. Gray
and the other man sped away in a vehicle. Jones, who had
suffered a number of gunshot wounds, staggered to the front door. Avant
called 911 and waited with Jones until emergency personnel arrived. Jones underwent
surgery, but died twelve days later from the injuries.
The State charged Gray with felony murder, murder, robbery, attempted murder, unlawful possession
of a firearm by a serious violent felon (possession by a SVF), and
carrying a handgun without a license as a C felony. The possession
by a SVF count alleged as the prior violent felony a February 1997
B felony dealing in cocaine conviction. During trial, Gray stipulated that he
had been convicted of a serious violent felony within the meaning of IC
35-47-4-5. The jury subsequently convicted Gray as charged.
The State also charged Gray with being an habitual offender and alleged as
the predicate offenses: (1) the aforementioned February 1997 dealing in cocaine conviction,
and (2) a December 1998 C felony carrying a handgun without a license
conviction. Gray waived a jury trial on the habitual offender phase, and,
after a hearing, the trial court adjudged Gray an habitual offender.
At sentencing, the trial court merged the murder and robbery convictions with the
felony murder conviction, and merged the felony handgun conviction with the possession by
a SVF conviction. It sentenced Gray to sixty years for the felony
murder, enhanced by thirty years for the habitual offender status, forty years for
the attempted murder conviction, and twenty years for the possession by a SVF
conviction. The trial court ordered the sentences to run concurrently, for a
total executed sentence of ninety years. Gray now appeals.
DISCUSSION AND DECISION
I. Habitual Offender Enhancement
In this case, Gray was convicted of three felonies: felony murder, attempted
murder, and possession by a SVF. In the event of simultaneous multiple
felony convictions and an habitual offender determination, the trial court must impose the
resulting habitual offender enhancement upon only one of the convictions and must specify
the conviction to be so enhanced. Lewis v. State, 769 N.E.2d 243,
249 (Ind. Ct. App. 2002), reaffd on rehg, 774 N.E.2d 941 (Ind. Ct.
App. 2002), trans. denied. The trial court has discretion in choosing which
sentence to enhance. Id. at 250. Here, the trial court enhanced
by thirty years Grays sixty-year felony murder sentence.
Gray now contends that this court should vacate the habitual offender enhancement portion
of his sentence, arguing that it was improper to use the same 1997
dealing in cocaine conviction to support both the habitual offender finding and the
unlawful possession by a SVF conviction.
We disagree and find that our
decision in Anderson v. State, 774 N.E.2d 906 (Ind. Ct. App. 2002), is
dispositive of Grays claim.
In that case, the State charged Anderson with murder, possession by a SVF,
carrying a handgun without a license, and intimidation. The State also alleged
that Anderson was an habitual offender. The SVF charge alleged as the
prior violent felony a 1987 robbery conviction, and the habitual offender charge alleged
as the predicate offenses that same 1987 robbery conviction and a 1994 carrying
a handgun without a license felony conviction. Thus, like the present case,
one of the prior offenses establishing that Anderson was an habitual offender also
was alleged as the relevant violent felony for the possession by a SVF
charge. Anderson was convicted as charged and was found to be an
habitual offender. The trial court enhanced Andersons sixty-year murder sentence by thirty
years for the habitual offender finding. It also sentenced him to ten
years for the SVF conviction and four years for the intimidation conviction.
Like Gray, Anderson appealed the enhancement of his sentence, arguing that it was
trial court error to enhance his sentence where the same offense was used
to establish both the habitual offender finding and the possession by a SVF
conviction. This court rejected that argument and affirmed the sentence enhancement.
Id. at 914.
In affirming the sentence enhancement, this court distinguished Andersons situation from that present
Conrad v. State, 747 N.E.2d 575 (Ind. Ct. App. 2001), trans. denied,
which reversed a habitual offender enhancement of a sentence for possession by a
SVF. In Conrad, the defendant was charged with and convicted of possession
by a SVF based upon 1978 convictions for rape, confinement, criminal deviate conduct,
and robbery. He was adjudged an habitual offender based upon those same
1978 convictions and a 1966 conviction for burglary. Conrad appealed his sentence
enhancement arguing that it was improper to have his SVF sentence enhanced under
the general habitual offender statute by proof of the same felony used to
establish that he was a SVF. This court agreed with Conrad and
[A] defendant convicted of unlawful possession of a firearm by a serious violent
felon may not have his or her sentence enhanced under the general habitual
offender statute by proof of the same felony used to establish that the
defendant was a serious violent felon.
Conrad, 747 N.E.2d at 595.
II. Sufficiency of the Evidence
However, as we observed in
Anderson, the crucial distinction is that in Conrad
the sentence enhanced by the habitual finding was the possession by a SVF
sentence, whereas in Anderson it was the murder sentence that was enhanced.
Anderson, 774 N.E.2d at 913. Like the trial court in Anderson, this
trial court enhanced Grays felony murder sentence, not his sentence for possession by
a SVF. Accordingly, we find no error in Grays sentence enhancement.
Gray next claims that the evidence was insufficient to establish that he attempted
to murder Avant. When reviewing claims of insufficiency of the evidence, we
neither reweigh the evidence nor judge the credibility of witnesses. Maxwell v.
State, 731 N.E.2d 459, 462 (Ind. Ct. App. 2000), trans. denied (citing Sanders
v. State, 704 N.E.2d 119, 123 (Ind. 1999)). Rather, we examine only
the evidence most favorable to the State along with all reasonable inferences to
be drawn therefrom. Id. We will not disturb the conviction if
there exists substantive evidence of probative value to establish every material element of
an offense beyond a reasonable doubt. Id. It is the function
of the trier of fact to resolve conflicts in testimony, and to determine
the weight of the evidence and the credibility of the witnesses. Id.
To convict Gray of attempted murder, the State was required to prove beyond
a reasonable doubt that he, acting with the specific intent to kill, engaged
in conduct which constituted a substantial step toward the commission of murder.
IC 35-41-5-1; 35-42-1-1; see also Maxwell, 731 N.E.2d at 462. Our
supreme court has repeatedly held that the requisite intent to kill may be
inferred from the use of a deadly weapon in a manner likely to
cause death or great bodily harm. See Maxwell, 731 N.E.2d at 462.
In this case, Grays challenge to the evidence does not focus on any
particular element of the attempted murder charge, but rather asserts generally that Avants
testimony was insufficient to prove that anyone tried to kill him. Indeed,
the gist of the argument is that Avant simply was not credible for
a variety of reasons. It is the function of the trier of
fact to determine who to believe and what weight to be given to
witness testimony. We cannot invade that province.
Here, the evidence most favorable to the judgment shows that Gray, after shooting
Jones in a rear room of the house, stumbled through the front living
room, where Avant was held during the robbery, and fled through the front
door armed with a loaded handgun. As Avant stood in or near
the front door, Gray pointed his gun at Avant and shot at him.
Transcript at 57, 73-74. This act constitutes the use of a
deadly weapon in a manner likely to cause death or great bodily harm.
See Maxwell, 731 N.E.2d at 462 (evidence that defendant pointed handgun and
shot at individuals at close range constitutes use of deadly weapon in manner
likely to cause death or great bodily harm). Based upon this evidence,
a reasonable trier of fact could have found that Gray acted with the
requisite intent to kill. See id. Sufficient evidence exists to sustain
Grays attempted murder conviction.
SULLIVAN, J., and SHARPNACK, J., concur.
See IC 35-42-1-1(2).
See IC 35-41-5-1 and 35-42-1-1.
See IC 35-47-4-5.
See IC 35-50-2-8.
Joness sister, Terry Taylor, owned the residence.
Footnote: We note that following the States presentation of evidence during the habitual
offender enhancement phase, Gray moved to dismiss the habitual offender count or, alternatively,
for acquittal, on a different basis than he now asserts. At that
time, he alleged that the 1998 handgun conviction had already been enhanced from
a misdemeanor to a felony and could not thereafter be used to support
a habitual offender enhancement.
Transcript at 272-73. After taking the matter
under advisement, the trial court denied the motion. See IC 35-50-2-8(e) (A
prior unrelated felony conviction may be used . . . to support a
sentence as a habitual offender even if the sentence for the prior unrelated
offense was enhanced for any reason, including an enhancement because the person had
been convicted of another offense.).
We note that in
Lewis, 769 N.E.2d at 249, we held that
Conrad does not preclude habitual offender enhancement of a SVF sentence where the
predicate felony convictions used to classify the defendant as a SVF and to
classify him as an habitual offender are different.