Criminal recklessness conviction tossed for double jeopardy after woman fires shots inside home

A woman who fired gunshots inside a residence while family members were inside will have one of her convictions of criminal recklessness thrown out after the Court of Appeals of Indiana partially reversed on double jeopardy grounds. 

In August 2018, Shenell Moore was renting a house in Hammond. Her mother, Barbara Moore, was living with her but was not on the lease.

One afternoon, Shenell and Barbara were joined at the house by Barbara’s sister, Deborah Moore, and Deborah’s daughter, Kiauna Moore. Deborah began braiding Barbara’s hair, but an argument arose and Shenell told everyone to leave. Deborah and Barbara said they wouldn’t leave until Deborah was done braiding Barbara’s hair, so Shenell called 911.

An officer responded, and the parties eventually agreed that Barbara, Deborah and Kiauna would leave when the hair braiding was done.

After the officer left, the arguing resumed and Shenell again told the others to leave. When they refused, Shenell went out to her car, retrieved a handgun and returned inside. She pointed the gun at Barbara and Deborah and then, with all four women “in arms reach,” she fired a shot into the floor and a second shot into an adjacent room. The three then left the house.

The state charged Shenell with three counts of Level 5 felony intimidation with a deadly weapon, three counts of Level 6 felony criminal recklessness with a deadly weapon and three counts of Level 6 felony pointing a firearm. She was also charged with Class A misdemeanor domestic battery for pushing Barbara.

The four charges relating to Barbara were later dismissed because the state could not secure her presence for trial.

In Lake Superior Court, Shenell was found guilty after a bench trial of two counts of criminal recklessness and one count of pointing a firearm at Deborah, but not guilty on the other three counts. She was sentenced to one year in jail for each conviction, all suspended to probation.

On appeal, Shenell argued her convictions constituted double jeopardy under the test established by the Indiana Supreme Court in Powell v. State, 151 N.E.3d 256 (Ind. 2020).

The COA agreed.

In Powell, the Supreme Court determined, “In short, crimes defined by conduct (rather than by consequence) permit only a single conviction (with multiple consequences resulting in enhanced penalties, not multiple crimes). But crimes defined by consequence (rather than by conduct) permit multiple convictions when multiple consequences flow from a single criminal act.”

Finding the criminal recklessness statute ambiguous, the COA looked at the second step of Powell.

“… (T)hat second step requires us to ‘determine whether the facts — as presented in the charging instrument and as adduced at trial — indicate a single offense or whether they indicate distinguishable offenses,’” COA Judge Nancy Vaidik wrote for the court.

Vaidik wrote that under that standard, Shenell’s actions do not support multiple criminal recklessness convictions.

“The evidence in the record indicates the two gunshots were fired in the same general direction and without a meaningful break in time,” the judge wrote. “There is no evidence that one shot was meant for one victim and the second shot was meant for another, or evidence that any victim was placed at greater risk by one shot or the other.

“The record demonstrates Shenell fired the two shots in quick succession with the unified purpose of scaring the other women out of her house,” she continued. “In short, the two shots were ‘so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.’ Therefore, under Powell, the two criminal-recklessness convictions constitute double jeopardy, and one of them must be reversed.”

The COA’s reversal sends the matter back to the trial court with instructions to vacate one of the convictions and resentence Shenell accordingly.

The case is Shenell Dasha Moore v. State of Indiana, 21A-CR-1083.

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