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Filed: November 23, 1987.


APPEAL FROM THE FULTON CIRCUIT COURT, The Honorable Douglas B. Morton, Judge, Cause No. S-85-37

Pivarnik, J., Shepard, C. J., DeBruler, Givan, and Dickson, JJ., concur.

Author: Pivarnik


Defendant-Appellant David L. Mihay was found guilty in a bench trial in the Fulton Circuit Court of the crimes of attempted murder, for which he received a term of twenty (20) years, and criminal recklessness, for which he received a term of four (4) years, said terms to be served concurrently.

Mihay presents three issues for our consideration in this direct appeal:

1. sufficiency of the evidence;

2. error in permitting expert testimony concerning the order in which shots were fired; and

3. error in sentencing.

Testimony at trial tended to show that on the evening of July 7, 1985, four young people, Traci Collins, Rozalyn Gail Costello, Ed Richard, and Shawn Shambarger, were at a Burger King restaurant in Rochester, Indiana. They saw a man, who later was determined to be Mihay, in a brown pickup truck. He looked at them and, as he drove by them, said "It's either an 8 or a 10." He then "peeled rubber" going out of the Burger King parking lot, drove into a nearby Kroger lot, and turned around so he was facing Collins and her friends. He continued to look at them but they ignored him.

Then Chris Brown, an acquaintance of the young people, pulled up behind the girls on his motorcycle. They talked for about two minutes. The man next drove his truck toward the group at a high rate of speed, stopped and said, "So we are having a fun time tonight?" This remark seemed to be directed at Chris Brown. Brown responded, "Yeah, sure." At this time the man pulled out a gun, pointed it out the window toward the group and said, using foul language, "I've got a gun here for you." At first Brown thought Mihay was joking but then realized he was in danger, jumped from his motorcycle, and attempted to run away. Mihay fired in Brown's direction. The four young people heard three shots but Brown remembers only two. He was struck in the left arm by the second shot. The bullet entered the flesh of his left arm, ricocheted off the bone and exited the other side. After shooting, Mihay backed his truck across the Kroger parking lot at a high rate of speed. He stopped in a darkened area, and thus prevented witnesses from seeing his license plate. He then left the scene.

Mihay was later apprehended near Peru, Indiana, on Highway 31, and charged with driving while under the influence. Although he refused a breathalyzer test, the arresting officer said he appeared very intoxicated. Mihay testified at trial he had consumed about twenty bottles of beer that afternoon, he was very intoxicated, and his only memory of the incident at the Burger King parking lot was that he fired the pistol into the air to celebrate the Fourth of July. He said he had no intention of shooting anyone and was surprised to find he had, in fact, hit someone. When the officer told him he was wanted for shooting someone in Rochester, he remarked that the man must have been flying up in the air for Mihay to have hit him. Chris Brown and the other young people at the parking lot stated Mihay's demeanor was such that they thought he was intoxicated or under the influence of some drug when they confronted him. Brown said when Mihay first talked to him he did not seem angry or sarcastic but that his mood changed when Chris turned back to talk to his friends and that he did seem angry when he fired the gun. Officer Dennis Reichard of the Rochester Police Department questioned Mihay after he was arrested and advised him of his Miranda rights. He testified Mihay showed very little effect from the alcohol at that time. Mihay admitted he shot the pistol four or five times above the young people's heads but stated he did not intend to shoot anyone. He said the reason he left the scene was that he knew he had violated the law by shooting a firearm in the city and thought he would be arrested.


Mihay contends there was insufficient evidence of intent to kill to allow a verdict of attempted murder. Where sufficiency is challenged we neither reweigh the evidence nor Judge the credibility of witnesses. Rather, we look to the evidence most favorable to the State together with all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value from which the jury could reasonably have inferred guilt beyond a reasonable doubt, the conviction will be affirmed. Barker v. State (1986), Ind., 491 N.E.2d 522, 523.

The necessary intent to commit murder may be inferred from the intentional use of a deadly weapon in a manner likely to cause death. It is also true that, dependent upon circumstances, the intent to murder may occur as instantaneously as ...

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