Attempted murder conviction vacated for double jeopardy violation

Though there was sufficient evidence to uphold an attempted murder conviction after a Tippecanoe County driveway shooting, the conviction was nevertheless reversed Friday on double jeopardy grounds.

The case of Alain Kiiwon Powell, Jr. v. State of Indiana, 18A-CR-1812, began in March 2017, when an altercation ensued between Alain Powell and Travis Nichols. Driving separate vehicles but both parked in Tyler Howard’s driveway, the two men began arguing over whether Howard had borrowed a vehicle from Travis without returning it.

Travis tried to pull away, but Powell pulled out a gun and shot at Travis’ vehicle five to six times, striking Davyn Nichols twice. Davyn was injured and would not have survived without medical intervention.

Powell was subsequently charged with eight counts, including attempted murder, aggravated battery, battery by means of a deadly weapon and battery resulting in bodily injury, all related to Davyn. He was convicted on each of the charges related to Davyn — as well as on other shooting-related charges, including attempted murder as to Travis — and was sentenced to an aggregate 64 years in prison.

On appeal, Powell first argued there was insufficient evidence to support the attempted murder conviction as to Davyn. But the Indiana Court of Appeals disagreed, with Judge Melissa May writing that Davyn’s side of Travis’ vehicle was directly next to Powell’s side of his vehicle. Additionally, Davyn was the one who told Travis that Powell had a gun.

“Based on the ongoing animosity between the parties, Powell’s use of a deadly weapon, and the act of firing multiple shots on the side where Davyn was sitting, we conclude the State presented sufficient evidence Powell had intent to kill Davyn and thus committed Level 1 felony attempted murder against Davyn,” May wrote. 

Powell also argued on appeal that the Tippecanoe Circuit Court committed fundamental error by giving a modified jury instruction that said, “Under the doctrine of transferred intent, the intent to harm one person may be treated as the intent to harm a different person when, through mistake or inadvertence, violence directed towards one person results in injury to a different person.”

“However,” May wrote, “Powell invited the error of which he now complains by agreeing to use a modified version of the transferred intent instruction.”

But the COA agreed with Powell that his two attempted murder convictions – one as to Davyn and the other as to Travis – violate double jeopardy.

“As we noted supra, there was no additional evidence that Powell intended to kill a specific victim or took additional steps to kill a specific victim,” May wrote. “Thus, it is possible that some or all of the evidence used to prove Powell’s attempted murder of Travis could also be used to prove Powell’s attempted murder of Davyn, and we conclude Powell’s two convictions of Level 1 felony attempted murder violate his right against double jeopardy.”

Thus, the attempted murder conviction as to Davyn was vacated. The trial court had previously merged Powell’s Level 3 felony aggravated battery conviction into the vacated attempted murder conviction, so the reversal meant the Level 3 felony conviction was reinstated.

The case was remanded for resentencing.

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