TIPTON v. STATE (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Marqueses Tipton was convicted of two counts of Level 5 felony criminal recklessness and one count of Level 3 felony aggravated battery at the conclusion of his bench trial. He appeals, contending that one of his criminal recklessness convictions should be vacated for violating substantive double jeopardy. The State does not oppose this claim. He also claims that his aggravated battery conviction should be reversed due to insufficient evidence.

[2] Upon review, we conclude that one of Tipton's Level 5 felony criminal recklessness convictions should be vacated. However, we also conclude that sufficient evidence supports his Level 3 felony aggravated battery conviction. Thus, we affirm in part and reverse in part.

Facts and Procedural History

[3] On March 20, 2023, Tipton was involved in a three-car automobile accident near a Shell gas station at the intersection of 71st Street and Keystone Avenue in Marion County. One of the other two vehicles involved in the accident was a silver SUV. Tipton exited his minivan and began yelling at the driver of the silver SUV, a female, and punching the air.

[4] He returned to and entered his minivan, driving it to the gas station parking lot and parking it there. However, the driver of the silver SUV did not. A similar-looking silver SUV arrived at the gas station parking lot as Tipton was parking his vehicle there. Aneysha Brown was the driver of that vehicle. She pulled her vehicle into the Shell parking lot so she and her six-year-old daughter could eat food she had purchased. But when Brown witnessed Tipton's post-accident behavior, she became concerned and decided to leave the area.

[5] When Tipton saw Brown leaving the parking lot, he ran after her vehicle with his gun drawn. He fired multiple shots in the direction of her vehicle. Brown heard the gunshots and realized Tipton was shooting at her. She instructed her daughter to stay low as she drove to another street and called law enforcement officers.

[6] One of the bullets fired by Tipton's weapon penetrated the wall of a store where Susan Warden was working as a cashier. The bullet struck Warden's left eye. Warden was transported to a hospital where she had surgery to remove her left eye and to receive a prosthetic one. Doctors were unable to remove all of the shrapnel from Warden's forehead.

[7] Officers investigating the incident recovered surveillance footage from the Shell gas station. The video showed Tipton running after Brown's silver SUV and firing multiple shots at the vehicle as it left the parking lot. The video also showed that the silver SUV that was involved in the automobile accident left the area at around the same time Brown had stopped at the gas station in her similar-looking vehicle. Six shell casings were recovered from the gas station parking lot.

[8] The State charged Tipton with Level 3 felony aggravated battery and two counts of Level 5 felony criminal recklessness. At the conclusion of the bench trial, the court found Tipton guilty as charged. The court imposed a ten-year sentence with one year suspended for Tipton's aggravated battery conviction. For the criminal recklessness convictions, the court imposed three-year sentences with two years suspended for each. Those sentences were to be served concurrently with each other but consecutively to the sentence for aggravated battery for an aggregate sentence of thirteen years with three years suspended.

Discussion and Decision

[9] Tipton appeals, contending that his criminal recklessness convictions violate double jeopardy protections. And he argues that the evidence is insufficient to support his aggravated battery conviction.

A. Double Jeopardy Challenge

[10] Tipton contends that one of his criminal recklessness convictions must be vacated on substantive double jeopardy grounds because the actions alleged to support each conviction are so compressed in terms of time, place, singleness of purpose, and continuity of action that they constitute a single transaction. Appellant's Br. pp. 6-11. The State does not oppose that argument. Appellee's Br. pp. 8-11. Nevertheless, our standard of review for questions of law such as substantive double jeopardy claims is de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024). Thus, we examine the claim presented.

[11] In Powell v. State, our Supreme Court set forth the analysis to be applied when determining whether a defendant can be convicted of multiple counts of the same offense arising out of a single transaction. 151 N.E.3d 256, 263 (Ind. 2020). On review, we begin with the text of the statute. “If the statute, whether expressly or by judicial construction, indicates a unit of prosecution, then we follow the legislature's guidance and our analysis is complete.” Id. at 264. “But if the statute is ambiguous, then we proceed to the second step of our analysis.” Id.

[12] At the time of Tipton's offenses, criminal recklessness was defined as “recklessly, knowingly, or intentionally perform[ing] an act that creates a substantial risk of bodily injury to another person[.]” Ind. Code § 35-42-2-2(a) (2019). The offense was elevated to a Level 6 felony if “it is committed while armed with a deadly weapon[.]” Ind. Code § 35-42-2-2(b)(1)(A) (2019). And the offense was a Level 5 felony if “it is committed by shooting a firearm into an inhabited dwelling or other building or place where people are likely to gather[.]” Ind. Code § 35-42-2-2(b)(2)(A) (2019). We have concluded that the criminal recklessness statute is ambiguous as to whether it is a conduct-based crime or a result-based crime. See Moore v. State, 181 N.E.3d 442, 447-48 (Ind. Ct. App. 2022). Thus, we proceed to the second step of the Powell analysis.

[13] Under the second step, we evaluate the facts adduced at trial to determine whether the defendant's actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Powell, 151 N.E.3d at 268 (quoting Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010)). Here, the evidence reveals that Tipton was upset after the automobile accident, and ran after Brown's vehicle, mistaking her vehicle for that of the silver SUV involved in the accident. He assumed a shooting stance, and over the course of eight seconds, fired multiple shots in the direction of Brown's vehicle. There were no meaningful breaks in the action, and the shots were all fired in the same general area. Tipton's shots were so compressed in terms of time, place, singleness of purpose, and continuity of action that they constitute a single transaction. We conclude that one of Tipton's convictions for criminal recklessness shall be vacated. And there is no consequence to Tipton's sentence because the sentences for criminal recklessness were to be served concurrently.

B. Sufficiency Challenge

[14] Next, Tipton challenges the sufficiency of the evidence supporting his Level 3 felony aggravated battery conviction. Our standard of review is well settled:

For sufficiency of the evidence challenges, we consider only probative evidence and reasonable inferences that support the judgment of the trier of fact. On sufficiency challenges, we will neither reweigh evidence nor judge witness credibility. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021) (internal citations omitted).

[15] To prove beyond a reasonable doubt that Tipton committed Level 3 felony aggravated battery, the State was required to establish that Tipton knowingly or intentionally inflicted an injury on Warden that caused protracted loss of the function of a bodily member or organ, specifically her eye. Appellant's App. Vol. II, p. 38 (charging information); see also, Ind. Code § 35-42-2-1.5(2) (2014). “A person engages in conduct ‘intentionally’ if, when he engages in conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a) (1977). “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b) (1977).

[16] Tipton was prosecuted under a theory of transferred intent; he fired his gun in the direction of Brown's vehicle and one of the bullets struck Warden. Under this theory, “ ‘the defendant's intent is transferred from the person against whom it was directed to the person actually injured.’ ” D.H. v. State, 932 N.E.2d 236, 238 (Ind. Ct. App. 2010) (quoting Tucker v. State, 443 N.E.2d 840, 842 (Ind. 1983)). “It has long been held that ‘[t]he fact that [the defendant] did not strike his intended victim but instead injured another is not a defense.’ ” Id.

[17] Tipton's argument on appeal is that he did not intend to injure anyone. See Appellant's Br. p. 13. Instead, he claims he used the gun to try to stop Brown's vehicle. Id. However, “[i]ntent to commit battery may be inferred from the deliberate use of a deadly weapon in a manner calculated to strike another person.” Straub v. State, 567 N.E.2d 87, 92 (Ind. 1991). A deadly weapon means “[a] loaded or unloaded firearm.” Ind. Code § 35-31.5-2-86 (2012). But, Tipton argues that the location of the holes in Brown's vehicle—“around or below the bumper”—supports his argument that he merely meant to stop the vehicle. Appellant's Br. p. 13.

[18] However, the evidence reflects that Tipton's stance was such that he was not firing the gun in a downward direction. And one of the bullets was much higher than the bumper, striking near the right rear taillight of Brown's vehicle. Ex. Vol. I, p. 12 (Ex. 8). We conclude that Tipton's argument is a request for us to reweigh the evidence, a task we will not undertake. Hall, 177 N.E.3d at 1191. There was sufficient evidence from which a jury could infer that Tipton intended to cause Warden's injury, the protracted loss of her eye, under the theory of transferred intent to commit aggravated battery.

Conclusion

[19] Tipton's two convictions for criminal recklessness violate substantive double jeopardy. As such, one of the convictions should be vacated with no consequence to Tipton's sentence. And there is sufficient evidence to support Tipton's conviction of Level 3 aggravated battery. Consequently, we affirm in part and reverse in part.

[20] Affirmed in part and reversed in part.

Robb, Senior Judge.

Pyle, J., and Tavitas, J., concur.