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Powell v. State

Court of Appeals of Indiana

June 28, 2019

Alain Kiiwon Powell, Jr., Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Tippecanoe Circuit Court The Honorable Sean M. Persin, Judge Trial Court Cause No. 79C01-1703-F1-4

          ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C. Lafayette, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

          MAY, JUDGE.

         [¶1] Alain Kiiwon Powell Jr. appeals his conviction of Level 1 felony attempted murder[1] for the shooting of Davyn Nichols. He presents three issues for our review, which we restate as:

1. Whether the State presented sufficient evidence Powell committed Level 1 felony attempted murder for the shooting of Davyn Nichols;
2. Whether the trial court abused its discretion when it gave a modified version of the State's proffered jury instruction regarding transferred intent; and
3. Whether Powell's two convictions of Level 1 felony attempted murder violated double jeopardy.

         We affirm in part, reverse in part, and remand.

         Facts and Procedural History

         [¶2] In March 2017, Travis Nichols purchased a Ford Taurus from Tyler Howard. Shortly thereafter, Howard asked to borrow the vehicle, and he did not return it. On March 20, 2017, Travis, Davyn Nichols, and Troy Clements drove in a black Cadillac to the house where they believed the Taurus was parked. Travis was driving, Davyn was in the passenger seat, and Clements was in the back seat of the black Cadillac.

         [¶3] Around the same time Powell, Brittany Warren, and a third unidentified person were in an orange Cadillac. Warren received a call from Howard, who told her that Travis was in a black Cadillac in front of Howard's house. Howard indicated he suspected Travis was there to take back the Taurus and there might be a physical altercation.

         [¶4] Powell drove the orange Cadillac to Howard's house and saw the black Cadillac with Travis in the driver's seat. Powell pulled up to the black Cadillac so that the driver's side of the orange Cadillac was next to the passenger side of the black Cadillac. Powell rolled down the window and asked if Travis "got a problem with" Howard, whom Powell referred to as his "brother." (Tr. Vol. II at 86-7.) Powell and Travis then began to argue.

         [¶5] Davyn saw Powell holding a gun and told Travis that Powell had a gun. Travis said to Powell, "why you bring a gun to a fight for you know I aint got no gun." (Id. at 126) (errors in original). Travis started to pull away from Powell, and Powell fired five to six shots at Travis' vehicle. Two of the shots hit Davyn, who suffered multiple injuries and would have died without medical attention.

         [¶6] Police later apprehended Powell at his father's apartment. On March 24, 2017, the State charged Powell with three counts of Level 1 felony attempted murder for the attempted murders of Clements, Travis, and Davyn; Level 3 felony aggravated battery of Davyn;[2] Level 5 felony battery of Davyn by means of a deadly weapon;[3] Level 5 felony battery of Davyn resulting in bodily injury;[4]Level 5 felony criminal recklessness for firing the gun;[5] and Class A misdemeanor carrying a handgun without a license.[6] The State subsequently filed an information alleging Powell's sentence could be enhanced because he used a firearm to commit these crimes.[7] In addition, the State filed a charging information alleging Powell committed Level 5 felony carrying a handgun without a license with a prior felony conviction.[8]

         [¶7] After a four-day trial, the jury returned a not guilty verdict on the attempted murder charge for Clements and guilty verdicts on all other charges. The jury was dismissed, and then the trial court found Powell was eligible for the firearm enhancement. On July 9, 2018, the trial court entered convictions for two counts of attempted murder and one count of carrying a handgun without a license. The trial court sentenced Powell to thirty-two years for each attempted murder conviction, to be served consecutive to each other but concurrent with five years for ...


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