Camron Douglas Perkins v. State of Indiana

FILED Nov 30 2020, 10:03 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stacy R. Uliana Curtis T. Hill, Jr. Bargersville, Indiana Attorney General of Indiana Jodi K. Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Camron Douglas Perkins, November 30, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-695 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Kit C. Dean Crane, Appellee-Plaintiff. Judge Trial Court Cause No. 33C02-1611-MR-3

Riley, Judge. Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 1 of 21

STATEMENT OF THE CASE [1] Appellant-Defendant, Camron Perkins (Perkins), appeals his conviction for one

Count of felony murder, Ind. Code § 35-42-1-1(2), and one Count of attempted

murder, a Level 1 felony, I.C. §§ 35-42-1-1(1); -41-5-1(A) [2] We affirm.

ISSUES [3] Perkins presents three issues on appeal, which we consolidate and restate as the

following two issues:

(1) Whether the trial court abused its discretion by admitting certain evidence;

and

(2) Whether the State presented sufficient evidence beyond a reasonable doubt

to support Perkins’ attempted murder conviction.

FACTS AND PROCEDURAL HISTORY [4] After a seven-year relationship, in July of 2016, Sierra Cochran (Cochran)

broke up with her boyfriend, Jessie Fulton (Fulton). Fulton did not take the

breakup well, and he often threatened Cochran and Cochran’s housemate

Sheriton Winchester (Winchester). In the Fall of 2016, Fulton moved in with

Kendra Williams (Williams) and her boyfriend Justin Gibson (Gibson), who

lived at 6251 South County Road 325 West in Spiceland, Indiana. Fulton’s

new girlfriend, Danielle Flick (Flick), and other friends including Chance Smith

(Smith), often stayed at the house.

Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 2 of 21 [5] Fulton kept a deadbolt on his bedroom door and was selling drugs from

Williams/Gibson’s house. Due to his drug dealing activities, by November

2016, Williams and Gibson wanted Fulton to move out. Also, around

November 2016, Cochran began dating Tyler Pennington (Pennington), and

Winchester, Cochran’s housemate, began dating Pennington’s half-brother,

Devin Asberry (Asberry). Fulton, who was a former friend to both Asberry and

Pennington, was upset by this and he told Cochran he would make her life “[a]

living hell” and he threatened her life and the lives of her family. (Transcript

Vol. III, p. 162). Fulton also threatened Asberry’s life, and the life of his young

son. On two occasions, Pennington and Asberry went to Fulton’s home to try

and resolve the issues Fulton had with them. The first time Fulton refused to

talk with them, it got heated, and Gibson, Fulton’s housemate, made them

leave. On the second occasion, Fulton pulled two guns on Pennington and

Asberry and chased them away. Both times, Pennington and Asberry were

unarmed. [6] On Saturday morning, November 5, 2016, Asberry approached Perkins, who

was his coworker and friend, and he shared that Fulton had pulled guns on him

and Pennington. Asberry stated that he wanted to go to Fulton’s house to beat

up Fulton and Perkins offered to help. The following morning, Perkins met

with Asberry, Pennington, Cochran, and Winchester at Cochran/Winchester’s

home. Perkins came prepared with a ski mask, gloves, and two handguns: a

Remington .45 caliber semi-automatic handgun and a Colt .22 caliber semi-

automatic handgun. Perkins, Asberry, and Pennington discussed scaring and

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beating Fulton. Perkins stated that he wanted to “pistol whip” someone. (Tr.

Vol. III, p. 176). Asberry and Pennington sent their girlfriends Cochran and

Winchester to Walmart to buy long sleeve shirts to cover their2 tattoos,

toboggan masks, gloves, and duct tape. [7] On November 7, 2016, at approximately 3:00 a.m., Perkins, Asberry and

Pennington drove to Fulton’s house. Each of them possessed a handgun:

Perkins was armed with the Remington .45 handgun; Asberry possessed

Perkins’ Colt .22 handgun; and Pennington was armed with a 9mm handgun.

Pennington parked about one-half mile from Fulton’s house, and the three men

walked through a cornfield and woods to get to Fulton’s house. While

watching the house from a distance, Perkins and Asberry developed cold feet

and wanted to abort the mission but Pennington was “kind of pumped up about

it” since he had “never done anything like that.” (State’s Exh. VIII, p. 25).

Nonetheless, they all proceeded with the plan. Perkins approached the back

door and observed Smith sitting on the couch texting on his phone. With

Pennington’s encouragement, Perkins entered Fulton’s house by opening the

unlocked back door. Pennington and Asberry followed behind. Once inside,

Perkins ordered Smith not to move. Pennington and Asberry proceeded to

forcefully open Williams’ and Gibson’s bedroom door. Twice, Asberry

demanded Williams’ phone, but Williams stated that she did not have one.

Before Asberry and Pennington exited Williams’ and Gibson’s bedroom, they

ordered Williams not to move. Scared of the men, Williams threw a blanket

over her face. Gibson remained asleep in their bed.

Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 4 of 21 [8] Meanwhile Perkins, who was watching Smith in the living room, stepped away

and walked toward Fulton’s bedroom door. Perkins kicked it open, and

Asberry and Pennington stormed into Fulton’s bedroom. Asberry and

Pennington demanded money and the safe from Fulton. Fulton was

subsequently hit with a gun as he tried to wrestle with one of them. The gun

discharged, and Fulton’s girlfriend, Flick, screamed and threw a blanket over

herself. To defend himself, Fulton grabbed his .38 revolver from underneath his

bed and fired all five rounds at Pennington and Asberry. Pennington and

Asberry returned fire. Perkins appeared to have returned to the living room,

and he shot Smith in the right shoulder with his Remington .45 caliber

handgun. All three men then ran out of Fulton’s house. [9] Perkins and Asberry ran back through the cornfield to where they had parked

their vehicle while Pennington, who had been shot by Fulton in his left arm,

ran in a different direction. While running toward the vehicle, Asberry threw

his shirt, toboggan mask, and gloves down. On their drive back to

Cochran/Winchester’s house, Perkins threw his mask and gloves out of the

window. With no means to get home, Pennington called Cochran to pick him

up. She found Pennington bleeding on the side of the road. Pennington told

Cochran that Fulton had shot him and that he had shot Fulton in return.

Before going to the hospital, Cochran drove Pennington to his cousin’s house

where he left his 9 mm handgun. [10] Meanwhile at Fulton’s house, Smith approached Gibson’s girlfriend, Williams,

and told her that he needed help because he was losing a lot of blood. As

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Williams followed Smith back to the couch, she saw Fulton on his bedroom

floor screaming in pain from a gunshot wound to his right shoulder. Williams

attempted to stop Smith’s bleeding, while Fulton’s girlfriend, Flick, called 911.

Despite medical intervention at the hospital, Smith died. The bullet recovered

from Smith’s body was fired from Perkins’ Remington .45 semi-automatic

handgun. [11] Several hours after the shooting, the New Castle Police Department

interviewed Asberry, Cochran, and Winchester. From those interviews,

Perkins became a person of interest in the shooting. Later that afternoon,

Perkins voluntarily presented himself at the police station to give a statement.

Captain Detective Scott Ullery (Captain Ullery) and Detective Mark Reece

(Detective Reece) conducted the interview. Perkins was given his Miranda

warnings and he waived those rights. After he repeatedly denied his role in the

shooting, Perkins requested an attorney. At that point, Captain Ullery and

Detective Reece stopped the interview, but before exiting the room, they

informed Perkins that he was being detained for the investigation. A short time

thereafter, Perkins requested a cigarette, and Captain Ullery asked Sergeant

Chase Hightower (Sergeant Hightower) to take Perkins outside so that he could

smoke the cigarette. Captain Ullery advised Sergeant Hightower not to

question Perkins about the shooting since Perkins had invoked his right to

counsel. [12] Sergeant Hightower and Perkins knew each other from prior encounters. While

smoking, Perkins spontaneously stated to Sergeant Hightower that he did not

Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 6 of 21

shoot anybody, and, twice, Sergeant Hightower reminded Perkins that he could

not directly speak with him about the case. Perkins also indicated that he did

not like Detective Reece’s disrespectful attitude toward him, and he preferred

having a second interview with Sergeant Hightower. Sergeant Hightower

stated that he was not sure if that was possible and he had to consult with his

superior. Sergeant Hightower, however, warned Perkins that Captain Ullery

would be present at a second interview. Perkins stated that he was okay with

that. Sergeant Hightower subsequently placed Perkins back in the interview

room and approached Captain Ullery, who then consulted with the prosecutor. [13] Approximately eleven minutes after the first interview ended, Sergeant

Hightower and Captain Ullery entered the interview room to commence a

second interrogation and the following exchange occurred:

[Captain] Ullery: [Perkins] you were advised of your rights earlier do you understand your rights are still in force and you have not waived those rights, do you understand that?

Perkins: Yeah, well I did waive my rights but now I’m not.

[Captain] Ullery: Well, . . . what I’m saying is, you were advised of your rights and you understand what your rights were and during our first interview you uh, said that you thought you might want to talk to an attorney, now it’s my understanding that you contacted [Sergeant] Hightower and have reinitiated contact with us and you want to talk to us.

Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 7 of 21

Perkins: Well I just, I just want to talk about like what’s going on and like the options and like what charges are being brought up and stuff like that . . .

[Sergeant] Hightower: Here’s the thing, do you want to talk to us or not? It’s yes or no[?]

[Captain] Ullery: You’ve already initiated contact, I can’t tell you where the investigation is going . . .

Perkins: I don’t want to go to prison guys, I don’t want to get in trouble[.]

[Captain] Ullery: . . . I came back in here because I was told you want to talk to us, so . . . do you want to talk to us or not, it’s totally up to you?

Perkins: I don’t know man . . .

Perkins: Sure[.]

[Captain] Ullery: So is that a yes?

Perkins: yeah[.] (State’s Exh. Vol. VIII, pp. 12-13). After being questioned repeatedly regarding the shooting, Perkins agreed to talk. Perkins began explaining that the day before the shooting, he was at work when Asberry approached him and shared with him about Fulton pointing a gun at him and making death threats. Perkins responded by stating that Asberry should beat Fulton’s “ass.” (State’s Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 8 of 21

Exh. VIII, p. 19). Asberry and Perkins then talked about “guns and stuff” and

about taking Fulton’s safe which contained money and drugs. (State’s Exh.

VIII, p. 19). Perkins agreed to meet Asberry and Pennington later that day.

Perkins confessed that the original plan was to go Fulton’s house and scare him

and not engage in a shootout. Notwithstanding his statement, Perkins stated

that he brought his Remington .45 handgun and his Colt .22 handgun with him

to Fulton’s. Perkins added that he maintained possession of the Remington .45

handgun, while Asberry had his Colt .22 handgun and Pennington had his own

9mm handgun. Perkins stated that he did not know if he discharged his gun

since he was very scared. Perkins believed that either the 9mm handgun which

Asberry had or the Colt .22 handgun which Pennington had at the time of the

shooting killed Smith because he did not shoot anyone. Perkins then stated that

both of his handguns were at his mother’s house. Pursuant to a search warrant,

both handguns were recovered. [14] On November 10, 2016, the State filed an Information, charging Perkins with

two Counts of felony murder and one Count of attempted murder, a Level 1

felony. On December 20, 2019, Perkins filed a motion to suppress the

incriminating statements he made during the second interview. On January 13,

2020, the trial court conducted a hearing, and took the matter under

advisement. The following day, the trial court issued an Order, denying

Perkins’ motion to suppress the statements he made during his second interview

after determining that while Perkins had validly invoked his right to counsel

during the first interview, Perkins “initiated further discussions with law

Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 9 of 21

enforcement officers and knowingly and intelligently waived the right

previously invoked.” (Appellant’s App. Vol. II, p. 116). [15] A jury trial commenced on January 27, 2020. Winchester and Cochran

admitted that they went to Walmart to buy toboggans, black shirts, gloves, and

duct tape because Asberry and Pennington had asked them to go purchase the

items. They also claimed that Pennington and Asberry had discussed going to

Fulton’s house to confront Fulton. There were also discussions by Pennington

to take Fulton’s safe which possibly contained money and drugs. Cochran

stated that Perkins did not actively participate in the discussions, however,

Cochran heard Perkins say that he wanted to pistol whip someone. Cochran

testified that shortly after the shooting, Pennington called her to come pick him

up and she found him bleeding on the side of the road. Pennington told

Cochran he had shot Fulton. Over Perkins’ objection, the trial court admitted

Perkins’ video interviews. Further, the autopsy report revealed that Smith died

from a gunshot wound to his right shoulder. An Indiana State Police analyst

opined that the fatal gunshot that killed Smith was fired from Perkins’

Remington .45 semi-automatic handgun. [16] At the close of the evidence, the jury found Perkins guilty as charged. At

sentencing, the trial court vacated one of the felony murder verdicts. The trial

court then imposed a sixty-year sentence on the remaining felony murder

conviction, and a consecutive thirty-five-year sentence on the Level 1 felony

attempted murder.

Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 10 of 21 [17] Perkins now appeals. Additional information will be provided as necessary.

DISCUSSION AND DECISION I. Admission of the Evidence

[18] When ruling on the admissibility of evidence, the trial court is afforded broad

discretion, and we will only reverse the ruling upon a showing of abuse of

discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). An abuse

of discretion involves a decision that is clearly against the logic and effect of the

facts and circumstances before the court. Id. We consider the evidence most

favorable to the trial court’s ruling and any uncontradicted evidence to the

contrary to determine whether there is sufficient evidence to support the ruling.

Id. [19] Perkins contends that the statements he made during the second interview were

obtained in violation of his Fifth Amendment right to counsel and that the trial

court therefore abused its discretion in admitting them. [20] The Self-Incrimination Clause of the Fifth Amendment to the United States

Constitution provides that “[n]o person . . . shall be compelled in any criminal

case to be a witness against himself[.]” U.S. Const. amend. V. This

constitutional safeguard is applicable to the several states via the Fourteenth

Amendment. Bleeke v. Lemmon, 6 N.E.3d 907, 925 (Ind. 2014). 1 In Miranda v.

1 We note that Article 1, Section 14 of the Indiana Constitution also provides individuals with a similar right to be free from self-incrimination. Perkins, however, does not make any cognizable argument under the

Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 11 of 21

Arizona, 384 U.S. 436, 469 (1966), the United States Supreme Court held that,

to protect this right against self-incrimination, a suspect must be informed of the

right to remain silent and the right to have counsel present during a custodial

interrogation. The Miranda Court further held that when an “individual states

that he wants an attorney, the interrogation must cease until an attorney is

present. At that time, the individual must have an opportunity to confer with

the attorney and to have him present during any subsequent questioning.” Id.

at 474. Accordingly, if a person in custody unequivocally invokes his right to

counsel, police must immediately and “scrupulously honor” that request and

cease all further interrogation, unless the suspect initiates further

communication with the police. Bean v. State, 973 N.E.2d 35, 40 (Ind. Ct. App.

2012) (citing Miranda, 384 U.S. at 479), trans. denied. Although police stations

are not required to “have a ‘station house lawyer’ present at all times to advise

prisoners[,]” law enforcement must cease questioning an individual until he has

the opportunity to consult with counsel. Miranda, 384 U.S. at 474. [21] Even if the accused initially elects to waive his rights, such waiver may later be

rescinded at any time, and “[i]f the right to counsel or the right to remain silent

is invoked at any point during questioning, further interrogation must cease.”

Carr v. State, 934 N.E.2d 1096, 1102 (Ind. 2010) (quoting Berghuis v. Thompkins,

Indiana Constitution. For this reason, we do not discuss Article 1, Section 14 and focus our analysis solely on the Fifth Amendment. See Haviland v. State, 677 N.E.2d 509, 513 n.2 (Ind. 1997).

Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 12 of 21

560 U.S. 370, 387-88 (2010)). Where the police continue to question an

individual after he has indicated he wants an attorney, “a heavy burden rests on

the government to demonstrate that the defendant knowingly and intelligently

waived his privilege against self-incrimination and his right to retained or

appointed counsel.” Miranda, 384 U.S. at 475. [22] If, however, the accused on his own “initiates further communication,

exchanges, or conversations” with law enforcement, then the accused may be

questioned further without counsel present. Edwards v. Arizona, 451 U.S. 477,

484-85 (1981). Subsequent cases from the Court “have interpreted [Edwards] to

mean that the authorities may not initiate questioning of the accused in

counsel’s absence.” Minnick v. Mississippi, 498 U.S. 146, 152 (1990). [23] The initiation of further communication by an accused, standing alone, is not

sufficient to establish a waiver of the previously asserted right to counsel.

Osborne v. State, 754 N.E.2d 916, 922 (Ind. 2001). If the accused did initiate

further communication, then the subsequent inquiry is whether there is a valid

waiver of the right to counsel, i.e., whether the purported waiver was knowing

and intelligent under the totality of the circumstances. Id. “[E]ven if a

conversation . . . is initiated by the accused, where reinterrogation follows, the

burden remains upon the prosecution to show that subsequent events indicated

a waiver of the Fifth Amendment right to have counsel present during the

interrogation.” Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983).

Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 13 of 21 [24] A few hours after the shooting, Perkins presented himself at the police station

for questioning. Perkins was given his Miranda warnings and he waived those

rights. After repeatedly denying his involvement in the attempted robbery of

Fulton’s drugs and money and in the shootings of Smith and Fulton, he

invoked his right to counsel. Captain Ullery and Detective Reece ended the

interview, informed Perkins that he was not free to leave, and they exited the

interrogation room. Perkins then requested a cigarette. Sergeant Hightower

was asked to accompany Perkins outside to smoke a cigarette but was

cautioned not to question Perkins about the impending investigation since

Perkins had requested an attorney. Once outside, Perkins spontaneously

declared that he did not shoot anybody, and twice, Sergeant Hightower

reminded Perkins that he could not speak with him about the case. Perkins

then informed Sergeant Hightower that he was willing to be interviewed by

him, but he did not want Detective Reece present at a second interview.

Approximately eleven minutes after the first interview ended, Perkins was again

put in the interrogation room since he had initiated conversation with Sergeant

Hightower. At the start of the second interview, Captain Ullery attempted to

clarify if Perkins wanted to make further statements regarding the robbery and

shooting despite the fact that Perkins had invoked his right to an attorney, and

the following exchange occurred:

[Captain] Ullery: [Perkins] you were advised of your rights earlier do you understand your rights are still in force and you have not waived those rights, do you understand that?

Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 14 of 21

Perkins: Yeah, well I did waive my rights but now I’m not.

[Captain] Ullery: Well, . . . what I’m saying is, you were advised of your rights and you understand what your rights were and during our first interview you uh, said that you thought you might want to talk to an attorney, now it’s my understanding that you contacted [Sergeant] Hightower and have reinitiated contact with us and you want to talk to us.

(State’s Exh. Vol. VIII, p. 12). When Perkins answered Captain Ullery’s question with, “I just want to talk about like what’s going on and like the options and like what charges are being brought up and stuff like that,” Sergeant Hightower cut Perkins off and the following exchange then occurred

[Sergeant] Hightower: Here’s the thing, do you want to talk to us or not? It’s yes or no[?]

[Captain] Ullery: You’ve already initiated contact, I can’t tell you where the investigation is going . . .

Perkins: I don’t want to go to prison guys, I don’t want to get in trouble[.]

[Captain] Ullery: . . . I came back in here because I was told you want to talk to us, so . . . do you want to talk to us or not, it’s totally up to you?

Perkins: I don’t know man . . .

Perkins: Sure[.]

[Captain] Ullery: So is that a yes? Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 15 of 21

Perkins: [Y]eah[.]

(State’s Exh. Vol. VIII, pp. 12-13). [25] Here, it is evident that Perkins was fully advised of his rights at the beginning of

the first interview, he stated that he understood his Miranda rights, and signed a

written waiver. After a few minutes of questioning, Perkins invoked his right to

counsel, and Captain Ullery and Detective Reece immediately terminated the

interview. Approximately eleven minutes later, however, Perkins changed his

mind and reinitiated communication. He told Sergeant Hightower that he

wanted to talk to the police. The second part of the interview began with

Captain Ullery reminding Perkins that he had been given his Miranda warnings

and that he had invoked his right of counsel. Because Captain Ullery reminded

Perkins of his Miranda rights prior to the second interview and verified that he

understood these, Captain Ullery’s caution that Perkins rights still applied when

Perkins restarted the interrogation is sufficient to establish that Perkins

voluntarily waived his right to counsel upon resumption of the police interview.

See Osborne, 754 N.E.2d at 922. [26] Moreover, there is no evidence, and Perkins does not direct us to any, that he

lacked the capacity to understand his rights, and at no point did Sergeant

Hightower and Captain Ullery threaten, intimidate, deceive, or make promises

in order induce Perkins to continue the second interview. Osborne, 754 N.E.2d

at 922. Likewise, the decision to waive his right to counsel at the start of the

second interview was an informed one. Based on the totality of the

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circumstances, we conclude that Perkins knowingly, voluntarily, and

intelligently waived his right to counsel following his request for an attorney.

Accordingly, we hold that Perkins’ right to counsel was not violated and the

trial court did not abuse its discretion by admitting the statements Perkins made

during the second interview.

II. Sufficiency of the Evidence

[27] Perkins argues that there was insufficient evidence to convict him of Level 1

felony attempted murder of Fulton. When reviewing the sufficiency of the

evidence needed to support a criminal conviction, we neither reweigh evidence

nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).

“We consider only the evidence supporting the judgment and any reasonable

inferences that can be drawn from such evidence.” Id. We will affirm if there is

substantial evidence of probative value such that a reasonable trier of fact could

have concluded the defendant was guilty beyond a reasonable doubt. Id. [28] A person who “knowingly or intentionally kills another human being” commits

murder, a felony. I.C. § 35-42-1-1(1). Indiana’s attempt statute states: “A

person attempts to commit a crime when, acting with the culpability required

for commission of the crime, the person engages in conduct that constitutes a

substantial step toward commission of the crime. An attempt to commit a

crime is a felony or misdemeanor of the same level or class as the crime

attempted. However, an attempt to commit murder is a Level 1 felony.” I.C. §

35-41-5-1(a).

Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 17 of 21 [29] Perkins argues that “the State did not present any evidence that [he] even shot

towards Fulton.” (Appellant’s Br. p. 18). The State argues that the jury

properly found that Perkins had an intent to kill Fulton when he aided

Pennington in the attempted murder of Fulton. [30] A conviction for attempted murder requires proof that the defendant had the

specific intent to kill. Spradlin v. State, 569 N.E.2d 948, 949 (Ind. 1991). Under

Indiana’s accomplice liability statute, a person “who knowingly or intentionally

aids, induces, or causes another person to commit an offense commits that

offense[.]” I. C. § 35-41-2-4. To convict a defendant for attempted murder

under accomplice liability also requires the State to prove the defendant, “with

the specific intent that the killing occur, knowingly or intentionally aided,

induced, or caused his accomplice to commit the crime of attempted murder.”

Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000). Thus, when the State seeks

to convict a defendant of attempted murder on an accomplice liability theory, it

must prove: “(1) that the accomplice, acting with the specific intent to kill, took

a substantial step toward the commission of murder, and (2) that the defendant,

acting with the specific intent that the killing occur, knowingly or intentionally

aided, induced, or caused the accomplice to commit the crime of attempted

murder.” Id. [31] Accomplice liability applies to the contemplated offense, as well as all acts that

are a probable and natural consequence of the concerted action. Wieland v.

State, 736 N.E.2d 1198, 1202 (Ind. 2000). The jury was instructed that Perkins

could be convicted as an accomplice to Pennington, who was charged with the

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attempted murder of Fulton. To determine whether a defendant aided another

in the commission of the crime, the fact-finder considers: (1) presence at the

crime scene; (2) companionship with another engaged in a crime; (3) failure to

oppose the commission of the crime; and (4) the course of conduct before,

during, and after the occurrence of the crime. Wright v. State, 950 N.E.2d 365,

368 (Ind. Ct. App. 2011). As a general rule, mere presence at the scene of the

crime is not itself sufficient to allow an inference of participation in the crime.

Griffin v. State, 413 N.E.2d 293, 295 (Ind. Ct. App. 1981). Such presence may,

however, be considered with other evidence as a factor in determining a

defendant’s guilt. Id. [32] Williams, Gibson, and Fulton, all testified to the confrontation between Fulton,

Asberry, and Pennington, during which Fulton pointed his guns at Asberry and

Pennington. Cochran and Winchester testified that Perkins came to their

residence and discussed with Asberry and Pennington a plan of confronting

Fulton. The plan was to “shut it down” and put an “end to the arguing.” (Tr.

Vol. III, p. 112-13). Asberry and Pennington specifically talked about shooting

“if something bad happen[ed].” (State’s Exh. Vol. VIII, p. 8). Perkins stated

that he wanted to “pistol whip” someone, presumably Fulton. (Tr. Vol. III, p.

176). [33] Knowing that a gun battle with Fulton was highly probable, Perkins offered his

help. When Perkins presented himself at Cochran/Winchester’s residence, he

brought with him a ski mask, gloves, and two handguns—the Remington .45

handgun that killed Smith and the Colt .22 handgun that he lent to Asberry.

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Winchester testified that on the day of the shooting, Perkins, Asberry, and

Pennington were each armed with handguns before they left for Fulton’s house. [34] When the three men arrived at Fulton’s residence, Perkins entered first and he

secured Smith, and then waited while Asberry and Pennington terrorized

Williams in her bedroom. To further offer his assistance with the plan of

attacking Fulton, Perkins, who was watching Smith, momentarily left Smith

and walked toward Fulton’s bedroom door and kicked it in. Moments later,

Asberry and Pennington stormed into Fulton’s bedroom, and as anticipated by

all, a gun battle ensued. Both Fulton and Smith were shot in the process.

Perkins, Asberry, and Pennington thereafter ran out of Fulton’s house. Perkins

and Asberry drove back together to Cochran/Winchester’s residence.

However, Pennington, who had been shot, ran in a different direction, and had

no means to return to Cochran/Winchester’s house. Pennington called

Cochran, who picked him up by the side of the road. Pennington admitted to

Cochran that he had aimed and shot at Fulton. [35] In sum, Perkins knew that Asberry and Pennington intended violence on

Fulton by confronting Fulton at his home with guns, and possibly stealing his

drugs and money. Asberry and Pennington specifically talked to Perkins about

shooting if something bad happened. Perkins indicated that he wanted to pistol

whip someone. Perkins brought with him his two handguns to assist with the

plan. At no time did Perkins oppose the commission of the crimes. Perkins

was present at the crime scene and he actively participated by kicking in

Fulton’s door and shooting Smith. Pennington admitted to Cochran that he

Court of Appeals of Indiana | Opinion 20A-CR-695 | November 30, 2020 Page 20 of 21

had aimed and shot at Fulton. Lastly, while we note the plan of attacking

Fulton and stealing from Fulton was not Perkins’ plan, his course of conduct,

before, during, and after the occurrence of the crimes showed that he actively

participated in the attempted murder of Fulton. See Wright, 950 N.E.2d at 368.

Viewing this evidence in the light most favorable to the verdict, we conclude

there was sufficient evidence to support Perkins’ Level 1 felony attempted

murder conviction.

CONCLUSION [36] In light of the foregoing, we hold Perkins’ right to counsel was not violated and

the trial court did not abuse its discretion by admitting the statements Perkins

made during the second interview. In addition, we hold that the State

presented sufficient evidence beyond a reasonable doubt to sustain the Perkins’

attempted murder conviction. [37] Affirmed. [38] May, J. and Altice, J. concur

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