Justices reinstate attempted murder conviction vacated by COA

A man who fired multiple gunshots into a car in Lafayette after a confrontation was properly convicted of two counts of attempted murder, the Indiana Supreme Court ruled, reinstating one of the charges that had been vacated by the Indiana Court of Appeals.

Justices on Tuesday affirmed a Tippecanoe Circuit jury’s conviction of two counts of attempted murder against Alain Kiiwon Powell Jr. The unanimous decision in Alain Kiiwon Powell, Jr. v. State of Indiana, 19S-CR-527, came after the Indiana Court of Appeals vacated one of those convictions  as a double-jeopardy violation in June 2019.

Powell was among a group of people in a car who pulled up to another vehicle occupied by Travis Nichols, his wife, Davyn Nichols, and Troy Clements, leading to a confrontation concerning a dispute over a vehicle. As the altercation escalated, Powell loaded a handgun, and as Nichols threw his car into gear and tried to pull away, Powell fired five or six shots, striking all three occupants.

“Travis and Clements emerged from the chaos virtually unscathed. Davyn, on the other hand, having been struck by two bullets, barely escaped with her life,” Justice Christoper Goff wrote.

Powell was charged with three counts of attempted murder, criminal recklessness, carrying a handgun without a license and several counts of battery. The jury convicted as charged, except for the attempted murder charge pertaining to Clements, who was behind a tinted window in the backseat and therefore not visible to Powell.

Goff and the justices cited caselaw dating to a case in 1770s England against a baker who illegally sold numerous loaves of bread on a Sunday to determine whether, under the circumstances of this case, the multiple attempted murder charges were double jeopardy or should be reduced to a single count under the continuous crime doctrine.

“In these circumstances, may a court convict on one count of attempted murder (for the single act of shooting) or two (one for each victim)? While our attempted-murder statute contains no clear unit of prosecution, we find sufficient evidence of the defendant’s dual purpose in firing his weapon: intent to kill both victims,” Goff wrote. “Accordingly, we hold that the defendant’s actions, despite their proximity in space and time, amount to two distinct, chargeable offenses.”

The court noted the framework for claims of multiplicity: “(w)hether the state may charge a single offense in multiple counts depends on the crime’s statutory definition and the defendant’s actions.” Applying that framework to Powell, the court found that while the attempted murder statute contains no clear unit of prosecution, “Powell’s criminal acts indicate distinguishable offenses.”

“… (T)he multiple shots Powell fired — despite their proximity in space and time — amount to two chargeable offenses based on his dual purpose of intent to kill both Travis and Davyn,” the justices concluded. “We thus affirm the trial court and order the reinstatement of Powell’s attempted-murder conviction for Davyn.”

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