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.
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Chandra K. Hein Deputy Attorney General
Alain Kiiwon Powell Jr. appeals his conviction of Level 1
felony attempted murder 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
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.
affirm in part, reverse in part, and remand.
and Procedural History
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.
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.
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.
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
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; Level 5 felony battery of
Davyn by means of a deadly weapon; Level 5 felony battery of
Davyn resulting in bodily injury;Level 5 felony criminal
recklessness for firing the gun; and Class A misdemeanor
carrying a handgun without a license. The State subsequently filed
an information alleging Powell's sentence could be
enhanced because he used a firearm to commit these
crimes. In addition, the State filed a charging
information alleging Powell committed Level 5 felony carrying
a handgun without a license with a prior felony
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 ...