ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey W. Wible Steve Carter
LaGrange, Indiana Attorney General of Indiana
Nandita G. Shepherd
Deputy Attorney General
SUPREME COURT OF INDIANA
ROBERT KIEFER, ) ) Appellant (Defendant Below ), ) No. 44S03-0201-CR-11 ) In the Supreme Court v. ) ) No. 44A03-0011-CR-406 STATE OF INDIANA, ) In the Court of Appeals ) Appellee (Plaintiff Below ). )
January 4, 2002
The State charged Kiefer with attempted murder. A jury found Kiefer guilty,
and the court sentenced him to twenty-two years in prison.
Kiefer appealed his conviction. The Court of Appeals affirmed, holding that the
instruction on attempted murder was not erroneous and that there was sufficient evidence
to convict Kiefer. Kiefer v. State, slip op. at 5-6 (Ind. Ct.
App. 2001). We now grant transfer and reverse.
In reviewing sufficiency claims, we will not invade the province of the jury
and reweigh evidence or assess the credibility of witnesses. Rather, we look
to the evidence and reasonable inferences drawn therefrom that support the verdict, and
we will affirm the conviction if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable doubt.
Taylor v. State, 681 N.E.2d 1105, 1110 (Ind. 1997).
The State presented the testimony of five eyewitnesses: Chris Meringa, Kiefers two
grandchildren, and two other neighborhood children. (R. at 199, 214, 227, 233,
245.) Meringa was walking on the roadway roughly thirty feet from Kiefer,
(R. at 206), and the other four minors were standing near Kiefer when
he fired the gun. (R. at 238.) The jury also heard
evidence from three police officers and from Meringas brother-in-law. (R. at 256,
270, 283, 288.)
Meringa first testified that as he was walking by Kiefers home, he heard
an explosion. (R. at 202.) Looking back and seeing a plume
of black smoke, he sprinted home. (Id.) Meringa did not know
a gunshot had been fired until after he got home, when Kiefers grandson
Travis arrived. (R. at 203.) Although Kiefer and Meringa lived in
the same neighborhood, Meringa testified that he had never spoken with Kiefer, had
never been to his home, and had never had any problems with him
in the past. (R. at 204-05.) Asked if he was accusing
Kiefer of firing at him, Meringa said No. (R. at 209.)
David Weirich, Jr., a twelve-year-old neighbor of Kiefers, testified next. (R. at 214-16.) David and his brother Cain had gone to Kiefers to retrieve their fathers loaned air compressor. (R. at 216-17.) David testified:
Q: So let me ask you again, did Mr. Kiefer say anything before he shot at Chris Meringa?
A: Yes he did.
Q: O.K., now what did he say?
A: He said who is that. We told him Chris and [Kiefer] asked if he, if we, liked him and I said yeah, hes O.K. and he brought up the gun and shot.
Q: Where was ah, where was Chris when Mr. Kiefer shot at him?
A: Pas[t] a bush. A bush by the corner of the fence by the road.
(R. at 219.) On cross-examination, David clarified that Kiefer shot at the bush, not at Meringa. (R. at 226.)
Cain Mullins, David Weirichs thirteen-year-old brother, was next on the stand. (R.
at 217, 228.) Cain stated that as Chris was walking by, Kiefer
shot at him. (R. at 230.) Cain testified that after Kiefer
fired the gun Kiefer said, That kid must be scared now. (R.
Travis Kiefer, Kiefers seventeen-year-old grandson, testified next. (R. at 233.) Travis
lived with Kiefer. (Id.) Travis testified that Kiefer was holding the
gun because the two of them had been target shooting in the backyard,
(R. at 235), and that Kiefer was an experienced and accurate marksman.
(R. at 237-38.) The following exchange occurred:
Q: What happened then?
A: We were outside, I was working on my bike. Cain was talking to my grandpa about the air compressor. I was talking to them. My grandfather had the 44 black powder pistol. Chris Meringa walked by. My grandfather asked who that was. We all told him it was Chris and then my grandpa pulled up the gun and fired it.
Q: O.K. And ah, after he fired the gun what ah, did he say anything?
A: He said he might be scared.
Q: Your grandfather said that?
(R. at 238-39.) On cross-examination, Travis testified that the gun had four
rounds remaining after the gunshot in question. (R. at 242.) Travis
further stated that Kiefer could have been firing at the bush or he
could have been firing at the trash box right beside the bush.
(R. at 241.) Travis concluded by testifying that Kiefer turned and walked
casually back into the house after firing the gun. (R. at 242.)
The final eyewitness to testify was Heather Goodwin, Kiefers seventeen-year-old granddaughter. (R.
at 245-46.) She too lived in her grandfathers home. (R. at
246.) Heather testified that Kiefer asked whom the person was walking down
the road and then fired at a bush. (R. at 247.)
After the police arrived on the scene, Heather gave a statement that her
grandfather had been moody worse than a pregnant lady and fine one
minute and the next minute . . . really mad and yelling about
everything. (R. at 249.)
Sergeant Terry Martin of the LaGrange County Sheriffs Department testified next. (R.
at 256-57.) Martin was a neighbor of Kiefers and was the first
to respond to the incident. (R. at 258-60.) Martin testified that
Heather Goodwin reported the shooting, (R. at 258), and he described Kiefers unusual
behavior immediately before being taken into custody.
See footnote (R. at 260-62.)
Deputy Sheriff Clifford Hibbs of the LaGrange County Sheriffs Department followed Martin.
(R. at 270.) He testified that there were four rounds remaining in
Kiefers gun. (R. at 272-74.) Moreover, he testified that Kiefers gun
was single-action, meaning that Kiefer would have to cock the gun before firing
again. (R. at 275.)
Michael Brothers, Chris Meringas brother-in-law, testified next for the State. (R. at
283-84.) Brothers spoke with Travis Kiefer soon after the shooting. (R.
at 284-85.) The following dialogue occurred:
Q: Tell the jury what Travis said.
A: Ah, he come to the sliding glass door and ah, knocked on it. My father-in-law and I proceeded to open the door and he was asking for Chris. And I said Chris is busy can I help you. And he goes, yes. He said . . . that his grandfather had just . . . shot towards Chris.
Q: O.K., and he was . . .
A: He was worried and he wanted to find out [i]f Chris was all right.
(R. at 286.)
The final witness to testify was Officer Tad Oakley, a detective with the
LaGrange County Sheriffs Department. (R. at 288.) Oakley interviewed Travis Kiefer
the day after the shooting. (R. at 289.) Travis told Oakley
that his grandfather shot towards a tree and the boy. (R. at
294.) Oakley further testified that police used metal detectors but were unable
to locate the bullet fired from Kiefers gun, (R. at 299-300), and saw
no evidence of broken limbs on the bush allegedly shot at by Kiefer.
(R. at 300.)
The question here is whether Kiefer acted with the requisite intent to kill
Meringa when he fired his gun. In a prosecution for attempted murder,
the State must show a specific intent to kill.
See Armstrong v.
State, 429 N.E.2d 647 (Ind. 1982). Intent to kill may be inferred
from the nature of the attack and the circumstances surrounding the crime.
Nunn v. State, 601 N.E.2d 334 (Ind. 1992). Additionally, the trier of
fact may infer intent to kill from the use of a deadly weapon
in a manner likely to cause death or great bodily harm. Wilson
v. State, 697 N.E.2d 466 (Ind. 1998).
This Court has on very rare occasion overturned murder and attempted murder convictions
because of insufficient evidence establishing an intent to kill. See, e.g., Bethel
v. State, 730 N.E.2d 1242 (Ind. 2000) (reversing attempted murder conviction where record
was devoid of any probative evidence establishing that defendant, while committing robbery and
forcing two store clerks outside, pointed his gun at the clerks before shooting);
Nunn v. State, 601 N.E.2d 334 (reducing murder conviction to involuntary manslaughter where
defendant and victim did not exchange words and defendant struck victim only once
with his hands, causing an unusual injury); Pearson v. State, 523 N.E.2d 747
(Ind. 1988) (reversing attempted murder conviction where defendants conduct and surrounding events did
not evidence an intent to kill). The present case has much in
common with these.
First, Kiefer did not even know the identity of the person walking down
the road. Meringa testified that he did not know Kiefer, had never
spoken with him, and had experienced no problems with him previously. The
record reveals no motive or reason for Kiefer to kill Meringa. While
motive is not an element of the crime, the absence of motive is
a significant exculpatory factor here because an inference is necessary to establish Kiefers
intent to kill Meringa. See, e.g., Osborn v. State, 213 Ind. 413,
13 N.E.2d 223 (1938); German v. State, 166 Ind. App. 370, 337 N.E.2d
Second, the evidence presented shows that Kiefers conduct at the scene was inconsistent
with that of a man who intended to kill. Kiefer was standing
in a well-lit area near his garage in the presence of four witnesses.
(R. at 206, 221, 229.) Kiefer also had four rounds remaining
in his gun that he could have fired at Meringa. Meringa testified
that after the explosion, he turned and looked towards Kiefers residence. Kiefer
had ample opportunity to fire again had he wanted to kill Meringa.
Finally, Kiefers actions after the shooting did not support the conclusion that he
intended to kill Meringa. After shooting, Kiefer said that kid must be
scared now, lending credence to the argument that he intended only to frighten
Meringa. (R. at 231.) In addition, Kiefer walked casually back into
his home and did not seem agitated or violent immediately after the shooting.
These circumstances lead us to conclude that there was insufficient evidence to convict
Kiefer of attempted murder. Kiefers act was stupid, dangerous, and even
criminal, but based on the record, it did not rise to the level
of attempted murder, which was the only crime charged.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
. . .
At that point when I s[aw] him coming back towards the front door
with the . . . pistol in his hand I yelled at the
other officers that he has a gun . . . . Mr. Kiefer
walked outside the, the front door on to the porch. When he
walked out on the porch he had his gun out in his hand
like this, he was starting to level it down, when I yelled .
. . . [H]e was holding it . . . [at] belt level.
It started to move down. I was off to the side
of him only six, seven feet away. I yelled at him several
more time[s], Sheriffs Department, Sheriffs Department, drop the gun, drop the gun.
He then looked over at me, stepped back, laid the gun down and
stepped forward and stood there. We then handcuffed him.
(R. at 260-62.)