ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey G. Raff Karen M. Freeman-Wilson
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Thomas D. Perkins
Deputy Attorney General
MIKE M. WILLIAMS, ) ) Appellant (Defendant Below ), ) )v. ) No. 02SOO-9910-CR-603
SHEPARD, Chief Justice.
A jury found Mike Williams guilty of attempted murder, a class A felony, and attempted robbery, a class A felony. The court sentenced Williams to concurrent terms of fifty years for each crime and added thirty years to the robbery sentence for an habitual offender finding.
Williams presents four issues in this direct appeal:
I. Whether the evidence is sufficient to support the convictions;
II. Whether the trial court properly instructed the jury on the elements of attempted
III. Whether the trial court erred when it found good cause to excuse the
late filing of the habitual offender information; and
IV. Whether the sentence is manifestly unreasonable.
David Kissinger worked at the Wildwood Liquor Store in Fort Wayne, Indiana.
Because of a series of robberies, the owner provided the employees with bulletproof
vests and pistols.
On March 11, 1998, David Kissinger worked the second shift (6 p.m. to
1:30 a.m.) alone. At about 1 a.m., a man with his coat
pulled up to his face walked into the store shouting "open the safe
up m-f." Kissinger described the robber as a big man around six
foot two or three and 220 pounds, wearing a long black leather coat.
As the robber displayed a gun and again demanded money from the
safe, the coat that had masked his face came down, affording Kissinger an
opportunity to see the man's face.
Soon thereafter, another man entered the store.
Feeling threatened, Kissinger pulled out
a gun, but before he could shoot, the robber discharged his weapon and
shot off Kissinger's finger. Kissinger tried to run toward the cash register
for cover but felt a hot burning sensation in his leg and dropped
down to the floor. During this time Scott Englehardt, another employee, who
lived in the upstairs apartment, began screaming and banging on the door.
Kissinger grabbed a shotgun from behind the cooler and let Englehardt in the
store. Englehardt called the police.
Officer Craig Gregory was first on the scene and saw a red Chevy
truck, covered with frost, outside the store. He also noticed a black
bag in the truck bed; it was not covered with frost. Since
the truck was parked illegally, the police did an inventory and towed the
vehicle. The Officer found a wallet in the truck belonging to Christopher
Jones, the truck's owner.
Shortly after Kissinger arrived at the hospital, the police brought two suspects there
for possible identification and Kissinger, without hesitation, stated that neither was the robber.
A few days later, Kissinger was shown six photographs and quickly identified
Mike Williams as the robber.
The weapon used to shoot Kissinger was never recovered, nor was the black
leather coat that Williams wore.
In our review of a criminal conviction, we neither reweigh the evidence nor
judge the credibility of the witnesses and will affirm the conviction unless, based
on this evidence, we conclude that no reasonable jury could find the defendant
guilty beyond a reasonable doubt.
Tillman v. State, 642 N.E.2d 221 (Ind.
1994). The reviewing court does examine the probative evidence, and all reasonable
inferences to be derived therefrom, in the light most favorable to the verdict.
Hodge v. State, 688 N.E.2d 1246 (Ind. 1997). 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. at
The facts most favorable to the verdict indicate that Kissinger got a good
look at the robber when the robber inadvertently pulled his coat away from
Kissinger later identified Williams from a photo array.
The jury could find a person guilty based solely on the testimony of
a single eyewitness.
Hubbard v. State, 719 N.E.2d 1219, 1220 (Ind. 1999).
It is for the jury to judge the credibility of the witnesses;
we only impinge upon their responsibility "where a sole witness presents inherently contradictory
testimony." Tillman, 642 N.E.2d at 223. In the present case, Kissinger
never deviated from his initial assertion that he could identify the perpetrator.
We hold the evidence was sufficient on both counts.
. . . .
To convict the defendant, the State must have proved each of the following
The Defendant, Mike M. Williams:
1. acting with the specific intent to commit the crime of Murder by knowingly or intentionally killing another human being[,]
2. did discharge a firearm numerous times at or against the person or presence of said David Kissinger,
3. which was conduct constituting a substantial step toward the commission of the intended crime of Murder.
(R. at 83. )
Although one may be guilty of murder under our statute without entertaining a
specific intent to kill the victim, he cannot be guilty of attempted murder
without entertaining such intent. Spradlin v. State, 569 N.E.2d 948 (Ind. 1991).
Jury instructions setting forth elements of attempted murder must inform the jury
that the State is required to prove that the defendant, with intent to
kill the victim, engaged in conduct that was a substantial step toward killing.
Blanche v. State, 690 N.E.2d 709 (Ind. 1998).
Parsed to its relevant provisions, the instruction at issue states: "Williams acting with
the specific intent to commit the crime of Murder by knowingly or intentionally
killing another human being . . . which was conduct constituting a substantial
step toward the commission of the intended crime of Murder."
(R. at 83)
(emphasis added). Replete as it is with language about intent to murder,
counsel in effect argues that the instruction is faulty because it refers to
"Murder by knowingly or intentionally killing." This is an interesting argument, but
one that is not available on appeal. The instruction at issue was given
at trial as modified per request of the defense. (R. at 123.)
This leaves no issue for appeal. Kingery v. State, 699 N.E.2d 490,
494 (Ind. 1995).
Here, the trial court found good cause because the State was conducting plea
negotiations with Williams up until the date the habitual offender information was filed.
The trial court also found that sufficient time existed for Williams to
prepare for trial. The State filed the information on September 9, 1998,
and Williams trial was set for trial to begin on October 27, 1998.
Thus, Williams had well over a month to prepare to defend this
Generally, an amendment of an indictment or information to include an habitual offender
charge under Ind. Code §
35-50-2-8 must be made no later than ten
days after the omnibus date. Upon a showing of good cause, however,
the court may permit the filing of an habitual offender charge at any
time before the commencement of trial. Ind. Code Ann. § 35-34-1-5(e) (West
The omnibus date for the case at bar was May 11, 1998.
On September 9, 1998, the State filed an habitual offender information for the
first time. Thus, Ind. Code § 35-34-1-5(e) governs.
Haymaker v. State,
667 N.E.2d 1113, 1114 (Ind. 1996).
We held in Daniel v. State, 526 N.E.2d 1157 (Ind. 1988), that once
a trial court permits a tardy habitual filing, an appellant must have moved
for a continuance in order to preserve the propriety of the trial court's
order for appeal. We reiterated this rule in Haymaker, also noting that
a pending motion for speedy trial would not excuse a defendant's failure to
seek a postponement. Haymaker, 667 N.E.2d at 1114. As Justice Selby
reminded us then, there is no requirement that the habitual offender phase of
a criminal proceeding be conducted immediately following the guilt-innocence phase. Id. A
defendant can seek more time to prepare for the habitual question and still
proceed on schedule for a speedy trial of the main charge.
The Court of Appeals recently followed Daniel and Haymaker in Mitchell v. State, 712 N.E.2d 1050 (Ind. Ct. App. 1999), noting its disagreement with the contrary decision in Attebury v. State, 703 N.E.2d 175 (Ind. Ct. App. 1998) (no reason to impose this requirement on defendant who is seeking speedy trial). On this point of appellate practice, Attebury is disapproved. See footnote
Williams claim has not been preserved.
Although this Court has the constitutional authority to review and revise sentences, Ind.
Const. art. VII, § 4, it will not do so unless the sentence
imposed is "manifestly unreasonable in light of the nature of the offense and
character of the offender." Ind. Appellate Rule 17(B);
Garrett v. State, 714
N.E.2d 618, 623 (Ind. 1999).
The trial court found as aggravating circumstances that Williams had a lengthy criminal
record, including violent offenses, revocation of probation, and unsatisfactory discharge from probation.
The only mitigating circumstance was Williams' support of his family.
Williams does not contest these aggravators nor does he contend the court overlooked
any mitigators. A trial judge is in the best position to determine
aggravating and mitigating factors and the weight to afford them.
State, 640 N.E.2d 372, 373 (Ind. 1994). We think the trial court's
conclusion that the aggravators outweigh the mitigators was appropriate and thus was not
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
This instruction largely follows the Indiana Pattern Jury Instructions. The model instruction
on attempted murder reads:
To convict the Defendant of attempt, the State must have proved each of
the following elements:
(1) acting with the conscious purpose to [a high degree of awareness
that his or her intended conduct would be to] [set out conduct elements
of object crime as charged];
(2) did [set out conduct charged as substantial step];
(3) which was conduct constituting a substantial step toward the commission of
the crime of attempted murder.
Indiana Pattern Jury Instructions (Criminal § 2.02 (2nd ed. 1999).
A straightforward version of this might be: The defendant, acting with intent to kill a human being, did . . . .