Jeremiah Lamar Ware v. State of Indiana (mem. dec.)

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                  FILED
regarded as precedent or cited before any
                                                                                   Oct 23 2020, 8:43 am
court except for the purpose of establishing
the defense of res judicata, collateral                                                CLERK
                                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                                     Court of Appeals
                                                                                        and Tax Court

Sean P. Hilgendorf                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana

                                           IN THE

Jeremiah Lamar Ware,                                     October 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff                                       Miller, Judge
                                                         Trial Court Cause No.

Weissmann, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1133 | October 23, 2020              Page 1 of 6
[1]   The trial court convicted Jeremiah Ware of Level 1 Felony Attempted Murder

      after a bench trial.1 Ware now appeals, arguing that his conviction was based

      on insufficient evidence to prove he fired a weapon and that if he did, that he

      fired with the intent to kill. Finding no error, we affirm.

[2]   On January 14, 2019, Chaelice Abdulla and Tuesdae Stenson were hanging out

      at Stenson’s home on Cushing Street in South Bend. At some point, Stenson

      became involved in a fight on social media with Symone Berry. Berry then

      showed up outside Stenson’s place driving a red Dodge Avenger. Kanija

      Taylor was in the front passenger seat. Tyreik Williams was sitting behind

      Berry, and Jeremiah Ware was sitting behind Taylor. Both Taylor and Berry

      got out of the car. Berry and Stenson continued to argue. Abdulla watched

      from the window in Stenson’s living room. Surveillance footage taken from the

      house across the street shows a figure in the window, presumably Abdulla,

      messing with the blinds. State’s Ex. 1.

[3]   Shots were fired upon Stenson’s home. The surveillance footage shows a man

      sliding out of the rear driver’s side window where Williams sat and firing at

      Stenson’s residence. Id. Taylor testified that she also heard shots fired from the

      rear inside the car, where Ware sat. Tr. Vol. II p. 111-12. Another witness

      testified to seeing gunfire emerge from the passenger side of the car. Id. at 193.

          Ind. Code §§ 35-42-1-1; 35-41-5-1; 35-41-2-4.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1133 | October 23, 2020   Page 2 of 6
      A nearby sensor recorded fourteen shots, twelve of which were later connected

      to Williams’ handgun. Two shots were fired from an unknown gun. One of the

      bullets traced to the gun fired by Williams hit Abdulla, puncturing her lung and

      hitting her spine.

[4]   After the shooting stopped, Berry drove away. Taylor turned to the backseat

      and saw two guns — one handgun in Williams’ lap and one long gun resting in

      the middle of the backseat. She testified that she called the two men “dumb”

      and Ware told her not to say anything about the incident. Id. at 127-28.

[5]   Police arrived shortly after the shooting ended. Upon entering Stenson’s home,

      they found Abdulla unresponsive on the living room floor. Abdulla survived,

      but she can no longer walk and uses a wheelchair. Police recovered four

      projectiles from the living room and twelve bullet casings in the street directly in

      front of Stenson’s home. One bullet was also recovered from Abdulla’s body.

[6]   The next day, police stopped Berry’s red Dodge Avenger. She, Ware, and

      Williams were in the car. Berry was driving, Ware was in the front passenger

      seat, and Williams was in the back. The police took Berry, Ware, and Williams

      into custody. Upon searching the car, police recovered a Smith & Wesson

      handgun in the backseat containing Williams’ fingerprints. There was no

      physical evidence that Ware had ever handled that gun. Police also found two

      9mm shell casings in the back seat. According to the Firearm and Toolmark

      Examiner at the South Bend Police Department Crime Lab, these casings were

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1133 | October 23, 2020   Page 3 of 6
      not fired from the Smith & Wesson. The Smith & Wesson did fire the bullet

      that struck Abdulla and the casings found in the street. Id. at 219-22.

[7]   On January 18, 2019, the State charged Ware with Level 1 felony attempted

      murder and Level 3 felony aggravated battery. His two-day bench trial started

      on January 21, 2020. In its memorandum and order, filed January 31, 2020,

      the trial court found that Taylor’s testimony was “credible and corroborated.”

      Mem. and Order p. 5. It found that Ware was in the car, fourteen shots were

      fired, that Ware fired two shots into Stenson’s window, and that he intended to

      kill. Id. at 3-6. As a result, the trial court found Ware guilty on both counts,

      but only entered judgment for attempted murder due to double jeopardy

      concerns. The trial court sentenced Ware to thirty years in prison and he now


                                   Discussion and Decision
[8]   Ware argues that the State’s evidence at trial was insufficient to support his

      conviction; first, because the evidence does not prove that he fired at Stenson’s

      home, and second, because there was no proof that he had intent to kill. When

      reviewing the sufficiency of the evidence to support a conviction, we “must

      consider only the probative evidence and reasonable inferences supporting the

      verdict.” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will not reweigh

      evidence or reassess witness credibility. Id. Instead, we affirm unless no

      reasonable factfinder could determine that each element of the crime was

      proved beyond a reasonable doubt. Id. Even if reasonable people might

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1133 | October 23, 2020   Page 4 of 6
       disagree, we cannot set aside the trial court’s findings. Durham v. State, 250 Ind.

       555, 560, 238 N.E.2d 9, 12 (Ind. 1968).

[9]    To find Ware guilty of attempted murder, the State was required to prove

       beyond a reasonable doubt that he acted knowingly or intentionally to kill

       another human being and that his actions constituted a substantial step toward

       the commission of that crime. I.C. §§ 35-42-1; 35-41-5-1.

                               I. Evidence Ware Fired a Gun
[10]    Ware argues that the trial court “heap[ed] guesses upon speculation” in

       reaching the conclusion that Ware fired at Stenson’s home on January 14,

       2019. Appellant’s Brief p. 17. The court’s finding was based on the following

       evidence: Taylor believed Ware fired a gun, because she heard gunshots near

       her ear; she thus believed those shots were fired from inside Berry’s car, unlike

       the shots Williams fired over the car; Taylor saw two guns in the backseat (a

       handgun in Williams’s lap and a long gun resting on the seat between the two

       men); Ware told Taylor not to mention the incident to anyone; the forensic

       report on the audio recording of the shooting indicated that two shots sounded

       different than the other twelve recorded, which could indicate that a second

       weapon was fired; and the two 9mm casings found in the backseat of Berry’s

       car were not fired from the gun traced to Williams that fired the other twelve

       shots. Mem. and Order p. 4-5. The trial court found Taylor’s testimony

       credible and the forensic evidence convincing. Id at 5. A reasonable factfinder

       could infer from this evidence that Ware fired a gun.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1133 | October 23, 2020   Page 5 of 6
                                 II. Evidence of Intent to Kill
[11]   Additionally, there is sufficient evidence to find that Ware had the requisite

       intent to commit attempted murder. “The intent to kill may be inferred from

       the deliberate use of a deadly weapon in a manner likely to cause death or

       serious injury. [Our Supreme Court] has found sufficient evidence for

       conviction when the evidence indicates that a weapon was fired in the direction

       of the victim.” Bethel v. State, 730 N.E.2d 1242, 1245 (Ind. 2000) (internal

       citations omitted). The surveillance video shows someone at Stenson’s

       window, repeatedly shifting the blinds. The physical evidence indicates the

       gunmen fired fourteen shots, at least thirteen of which struck near that window.

       If twelve of these shots were from the Smith & Wesson bearing Williams’

       fingerprints, then a reasonable person could conclude that two of those shots

       were from the second gun fired by Ware. Altogether, this evidence is sufficient

       to prove that Ware shot at Abdullah as she hovered inside the home behind the

       window, and therefore Ware acted with the requisite intent to commit

       attempted murder.

[12]   The evidence is sufficient to support the trial court’s findings. Finding no error,

       we affirm.

[13]   The judgment of the trial court is affirmed.

       Bailey, J., and Vaidik, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1133 | October 23, 2020   Page 6 of 6
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