ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Charles E. Stewart, Jr. Jeffrey A. Modisett
Appellate Public Defender Attorney General of Indiana
2293 North Main Street
Crown Point, Indiana 46307 Suzann Weber Lupton
Deputy Attorney General
Office of the Attorney General
Indiana Government Center South
402 W. Washington Street, Fifth Floor
Indianapolis, Indiana 46204
INDIANA SUPREME COURT
MILTON McGEE, ) ) Indiana Supreme Court Appellant (Defendant Below ), ) Cause No. 45S00-9705-CR-323 ) v. ) ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
__________________________________________________________ APPEAL FROM THE LAKE SUPERIOR COURT The Honorable James E. Letsinger, Judge Cause No. 45G02-9604-CF-67
murder and battery. The jury also found him to be a habitual offender. The trial court merged the
two convictions and sentenced defendant to seventy years, forty years for his attempted murder
conviction enhanced by thirty years for being a habitual offender. Defendant offers one issue for
our review: whether the State presented sufficient evidence to sustain defendant's conviction for
attempted murder. We hold that the State presented sufficient evidence and affirm the trial court.
that either he or Dickerson intended to kill Frye. Defendant next contends that Frye's testimony
cannot be used to support the conviction. For these reasons, defendant asks that we reverse his
conviction and remand for a new trial.
When reviewing a sufficiency of the evidence claim, the reviewing court neither weighs the evidence nor judges the credibility of the witnesses. Hodge v. State, 688 N.E.2d 1246, 1247-48 (Ind. 1997). The reviewing court does examine the probative evidence, and all reasonable inferences to be derived therefrom, in the light most favorable to the verdict. Id. If, based upon this examination, we find that a reasonable trier of fact could have found guilt beyond a reasonable doubt, then we will sustain the conviction. Id. To convict a defendant of attempted murder, the State need prove that the defendant, acting with the intent to kill, engaged in conduct which constitutes a substantial step toward the commission of murder. Ind. Code §§ 35-41-5-1, 35-42-1-1 (1998); Hodge, 688 N.E.2d at 1248. Intent to kill may be inferred from the use of a deadly weapon. Barany v. State, 658 N.E.2d 60, 65 (Ind. 1995).
Under accomplice liability, an accomplice is criminally responsible for all acts committed by a confederate which are a probable and natural consequence of their concerted action. Vance v. State, 620 N.E.2d 687, 690 (Ind. 1993); see Hodge, 688 N.E.2d at 1248. The accomplice need not participate in each and every element of the attempted murder in order to be convicted of it. Hodge, 688 N.E.2d at 1248; Jones v. State, 536 N.E.2d 267, 270 (Ind. 1989). While the defendant's mere presence at the scene of the crime is insufficient to establish accomplice liability, his presence may be considered along with the defendant's relation to or companionship with the one engaged in the crime and the defendant's actions before, during, and after the crime. Hodge, 688 N.E.2d at 1248.
Converted by Andrew Scriven