“Under the doctrine of transferred intent, when a person deliberately attempts to kill another but in the process kills a third person, his intent to kill is transferred and he may be found guilty of the murder of the person who was killed.”
How later courts described this case
- “Under the doctrine of transferred intent, when a person deliberately attempts to kill another but in the process kills a third person, his intent to kill is transferred and he may be found guilty of the murder of the person who was killed.”
- “we will not search the record to find a basis for a party’s argument”
- “attempted murder requires a specific intent to kill, and is not supported by ‘knowing’ actions”
- shooting victim “while standing close to him” precludes inference that killing was reckless
Written by the judges who cited it.
The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 26 2016, 8:53 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren Bedwell Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Appellate Division
Indianapolis, Indiana Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cortez Jones, May 26, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1506-CR-695
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant Hawkins,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G05-1308-MR-55492
May, Judge.
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[1] Cortez Jones appeals his conviction of murder. 1 He argues the trial court erred
in declining to instruct the jury on reckless homicide 2 as a lesser included
offense. We affirm.
Facts and Procedural History
[2] In August 2013, Reginald Fagan lived with his girlfriend, Raven Sullivan, and
their two children in an apartment in Indianapolis. Anthony Kimmons,
Sullivan’s brother, also lived with them. Fagan had become acquainted with
Jones in the apartment complex that summer.
[3] Around 1:45 p.m. on August 20, 2013, Fagan and Kimmons were sitting on the
stairs outside their apartment after Sullivan went to work. A woman named
Keisha, who lived across the street, yelled for Fagan to come over. Fagan
ignored Keisha and instead went to sit in his car in the parking lot, where he
began looking at paperwork. Kimmons remained on the stairs.
[4] Fagan looked up and saw Jones come around the side of the apartment building
and shoot at the stairs where Fagan had been sitting with Kimmons. Kimmons
was still there and, as he stood up, Jones shot him. Kimmons stepped toward
the apartment, but then ran in another direction before collapsing. Fagan got
out of his car and ran away. Jones chased him and fired shots at him.
1
Ind. Code § 35-42-1-1(1).
2
Ind. Code § 35-42-1-5.
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[5] Dorenda Rogers was in an apartment at the complex and heard the gunfire.
She looked out the window and saw Jones shooting at Fagan in the parking lot.
She stepped out of her apartment as Fagan ran past. She saw Jones chasing and
shooting at Fagan. Jones ran “right past” Rogers as she stood on the sidewalk,
so she “was able to get a good look at him.” (Tr. at 43.) Fagan jumped into the
retention pond behind the apartment complex to avoid the gunfire, and Jones
fled.
[6] Indianapolis Metropolitan Police Department (IMPD) Officer Madeline
Lothamer was patrolling the area at the time and heard a report of shots fired.
When she arrived at the apartment complex one minute later, bystanders
pointed her toward Kimmons, who was lying on the ground. She was unable
to find a pulse on Kimmons. Then she heard people screaming that someone
was drowning in the pond. Officer Lothamer went over to the pond and saw
Fagan, who could not swim. She went to the north end of the pond, and Fagan
was able to maneuver his way toward her. Officer Lothamer helped Fagan out
of the pond. EMS arrived on the scene and took Fagan to the hospital.
[7] Rogers described the shooter to the police and gave a statement to IMPD
Detective Leslie VanBuskirk. Detective VanBuskirk showed Rogers a six-photo
array. Rogers circled Jones’ photograph, signed her name, and wrote “90%
sure” beside the photo. (State’s Ex. 4.)
[8] IMPD Detective Charles Benner visited Fagan at the hospital three times that
day. During the first visit, as Fagan was drifting in and out of consciousness, he
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identified the shooter as “Hakim,” (Tr. at 256), but during a second visit, Fagan
told Detective Benner the shooter was “Cortez” or “C-Dog.” (Id. at 246.)
During the third visit, Detective Benner showed Fagan a six photo array, and
Fagan circled Jones’ picture, signed his name, and wrote “120% positive”
beside it. (State’s Ex. 3.)
[9] Dr. Thomas Sozio, a forensic pathologist, conducted Kimmons’ autopsy. Dr.
Sozio determined Kimmons died from a single gunshot to the left arm that
entered the chest, perforated the right and left lower lung lobes, and transected
the inferior vena cava. The wound caused extensive internal bleeding. Dr.
Sozio recovered the bullet, which had not exited Kimmons’ body. Dr. Sozio
determined the death was a homicide.
[10] The day after the shooting, IMPD Detective Gregory Scott located Jones at the
home of his ex-girlfriend, Stacee Smith. Detective Scott executed a search
warrant and, in Smith’s bedroom, discovered a shoebox containing a revolver,
five spent cartridge cases, live ammunition, and a knit cap. The revolver was
wrapped in a yellow washcloth saturated with rubbing alcohol, and the revolver
and washcloth were inside a plastic bag. Firearms examiner Michael Putzek
examined the five fired casings and determined that they were fired by the
revolver found in the shoebox. Puztek also testified the bullet recovered from
Kimmons’ body was fired from the same revolver and was the same brand and
type as the live ammunition found with the revolver.
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[11] The State charged Jones with Kimmons’ murder and the attempted murder of
Fagan. 3 After the evidence was presented, Jones tendered two instructions on
reckless homicide 4 and requested they be given to the jury. The court found the
evidence did not support a reckless homicide instruction and declined Jones’
tendered instructions. A jury found Jones guilty as charged.
Discussion and Decision
[12] The trial court did not abuse its discretion by declining to instruct the jury on
reckless homicide as a lesser included offense of murder, as there was no serious
evidentiary dispute regarding Jones’ state of mind when he shot Kimmons. 5
3
Ind. Code §§ 35-42-1-1; 35-41-5-1. The State also charged Jones with being a serious violent felon in
possession of a firearm, see Ind. Code § 35-47-4-5, and requested his sentence be enhanced for use of a firearm
during a felony causing death. See Ind. Code § 35-50-2-11. After the jury found Jones guilty of murder and
attempted murder, the State moved to have the additional charges dismissed, and the court granted that
motion.
4
The first tendered instruction defined reckless homicide:
The crime of reckless homicide is defined by law as follows:
A person who recklessly kills another human being commits reckless homicide, a Class C
felony.
Before you may convict the Defendant, the State must have proved each of the following
beyond a reasonable doubt:
1. The Defendant, Cortez Jones
2. Recklessly
3. Killed
4. Anthony Kimmons
(App. at 203.) The second tendered instruction defined the word “recklessly:”
A person engages in conduct “recklessly” if he/she engages in the conduct in plain,
conscious, and unjustifiable disregard of harm that might result and the disregard involves
a substantial deviation from acceptable standards of conduct.
(Id. at 204.)
5
Jones also asks us to “reconsider precedent and grant defendants the unfettered right to have the jury
instructed on inherently included lesser offenses.” (Br. of Appellant at 6.) It is not our role to “reconsider or
declare invalid decisions of our supreme court.” Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App.
2005) (holding Indiana Supreme Court precedent is binding on appellate courts until it is changed by that
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“The manner of instructing a jury is left to the sound discretion of the trial
court.” Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied.
When a defendant requests an instruction on a lesser-included offense, the court
first must determine “whether the lesser offense is either inherently or factually
included within the crime charged.” Lane v. State, 997 N.E.2d 83, 87 (Ind. Ct.
App. 2013), trans. denied. Reckless homicide is inherently included in murder.
Id. at 87-88. Thus, we move to the next step of the analysis, which requires
determining “‘whether the evidence provided by both parties creates a serious
evidentiary dispute about the element or elements [that] distinguish the greater
from the lesser offense.’” Id. at 88 (quoting Young v. State, 699 N.E.2d 252, 255
(Ind. 1998), reh’g denied).
[13] The element that distinguishes murder and reckless homicide is the defendant’s
mens rea at the time of the killing. Id. Reckless homicide occurs when a person
“recklessly” kills another human being, Ind. Code § 35-42-1-5, and a person
acts recklessly “if he engages in conduct in plain, conscious, and unjustifiable
disregard of harm that might result and the disregard involves a substantial
deviation from acceptable standards of conduct.” Ind. Code § 35-41-2-2. In
contrast, murder occurs when a person “knowingly” or “intentionally” 6 kills
another human being. Ind. Code § 35-42-1-1(1). The State charged Jones with
court or by legislative enactment). Jones’ request that we reconsider well-established precedent is thus
inappropriate. See id. (declaring inappropriate a party’s request that we reconsider supreme court precedent).
6
A person engages in conduct “intentionally” if, when he engages in the conduct, it is his conscious objective
to do so. Ind. Code § 35-41-2-2(a).
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killing Kimmons only “knowingly.” (App. at 31.) A person engages in
conduct “knowingly” if, when he engages in the conduct, he is aware of a high
probability that he is doing so. Ind. Code § 35-41-2-2(b).
[14] Thus, Jones was entitled to instructions on reckless homicide if the evidence
created a serious evidentiary dispute about Jones’ mens rea. The trial court
found no serious evidentiary dispute regarding whether Jones acted knowingly
or recklessly when he shot Kimmons. “When an instruction is refused on
grounds that a serious evidentiary dispute does not exist, we reverse only upon
an abuse of discretion.” Lane, 997 N.E.2d at 88. “An abuse of discretion
occurs when a decision is clearly against the logic and effect of the facts and
circumstances before the court.” Id.
[15] Jones argues the record contained evidence he shot recklessly because he “was
firing wildly without a conscious purpose.” (Br. of Appellant at 14.) He directs
us to a page of Fagan’s deposition, but nothing therein suggests Jones was firing
“wildly” when he shot Kimmons. 7 Rather, Fagan stated:
7
Jones also directs us to Rogers’ testimony at “Tr. 481.” (Br. of Appellant at 14.) That transcript page
contains trial counsel’s argument in support of the reckless homicide instructions. Trial counsel’s argument
does not cite a specific page of Rogers’ testimony, and we will not search the record to find evidence to
support Jones’ argument. See Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012) (“we will not
search the record to find a basis for a party’s argument”), trans. denied. Not only did trial counsel’s argument
not inform us where to find Rogers’ statements to support Jones’ argument, but trial counsel’s argument was
qualified with the phrase “[i]f I recall correctly.” (Tr. at 481.) Waiver notwithstanding, Rogers testified she
heard shots, looked out the window, and saw Jones shooting at Fagan as he ran away. We fail to see how
any description Rogers may have given about the manner in which Jones was shooting as he chased Fagan
could be relevant to Jones’ mens rea when he shot Kimmons at the stairway.
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. . . And as I look up, I seen somebody come off the side of the
building and they shot at the stairs where I was sittin’ before, but
I wasn’t there anymore. So that was two rounds, pow, pow, that
missed. And then my brother stood up because he was still sittin’
on the stairs and the whole shootin’ caught him off guard.
As he stood up, I -- the -- the -- the person shot him in the arm.
(Ex. Vol. at 121) (grammatical errors in original). Jones also did not direct us
to legal authority supporting the proposition that firing a gun “wildly” is
indicative of a reckless, rather than knowing, mens rea, and we accordingly find
that argument waived. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015)
(failure to support argument with appropriate citation to legal authority and
record evidence waives argument for review).
[16] Jones came around the side of the apartment building to the bottom of the stairs
and began shooting directly at the stairs where Kimmons was sitting on the
sixth step. Jones fired two shots that hit the stairs. Kimmons stood to flee the
stairs, but Jones fired a third shot that went through Kimmons’ arm and lungs,
causing internal bleeding that killed Kimmons.
[17] Even if we assume for the sake of argument that Jones’ choice about where to
begin shooting was random, 8 we still could not conclude his shooting at
8
This assumption finds little support in the record. Jones chased Fagan from his car to the retention pond,
firing multiple shots at him along the way. Those facts suggest, and the jury found, that Jones intended to
kill Fagan that day. See Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002) (“attempted murder requires a
specific intent to kill, and is not supported by ‘knowing’ actions”). Yet Jones made no attempt to shoot
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Kimmons, who was six steps up the stairway from Jones, was anything but a
knowing killing. See also Pinkston v. State, 821 N.E.2d 830, 840 (Ind. Ct. App.
2004) (shooting victim “while standing close to him” precludes inference that
killing was reckless), trans. denied. There was no serious evidentiary dispute as
to whether Jones recklessly or knowingly killed Kimmons. 9 Therefore, the trial
court did not err in declining Jones’ tendered instructions on reckless homicide.
See id. (court did not abuse discretion in refusing instruction on reckless
homicide as a lesser included offense).
Conclusion
[18] The trial court did not abuse its discretion in declining to instruct the jury on
reckless homicide as a lesser included offense of murder because there was no
serious evidentiary dispute regarding Jones’ mens rea when he shot at Kimmons.
Accordingly, we affirm.
[19] Affirmed.
Najam, J., and Riley, J., concur.
Rogers, who also saw him firing his gun. The jury could have inferred from those facts that Jones arrived at
the scene intending to kill at least Fagan.
If Jones killed Kimmons when he intended to kill Fagan, he would still be guilty of murder rather than
reckless homicide. See White v. State, 638 N.E.2d 785, 786 (Ind. 1994) (“Under the doctrine of transferred
intent, when a person deliberately attempts to kill another but in the process kills a third person, his intent to
kill is transferred and he may be found guilty of the murder of the person who was killed.”).
9
Because there was no serious evidentiary dispute, we need not address Jones’ assertion the trial court
erroneously found his tendered instructions were not in proper form.
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