The Indiana Court of Appeals has vacated a Tipton County man’s pointing a firearm and criminal recklessness convictions, finding them to be included offenses of his separate convictions for attempted murder.
In December 2018, Javier Thurman pulled a gun on two separate people outside a Love’s Truck Stop in Tipton. He first pointed the gun at Clark Culp’s face as Culp was leaving the store and as Thurman was leaving Culp’s vehicle, shooting twice and hitting Culp with the second round. Culp ran after he was shot, and Thurman then unsuccessfully attempted to get a ride from a driver sleeping in his car, pointing the gun at Maynor Soto’s face and shooting after Soto refused.
Thurman was later arrested and admitted to entering Culp’s vehicle to steal money, the shootings, pointing the gun at Culp and firing, pointing the gun in the general area of Soto, and firing a shot at the driver’s side window of Soto’s vehicle.
He was ultimately charged with Level 1 felony attempted murder of Culp; Level 1 felony attempted murder of Soto; Level 4 felony possession of a firearm by a serious violent; Level 6 felony pointing a firearm at Culp; Level 6 felony pointing a firearm at Soto; and two counts of Level 6 felony criminal recklessness.
A jury found Thurman guilty of two counts of attempted murder, two counts of Level 6 felony pointing a firearm, and two counts of Level 6 felony criminal recklessness. The state moved to dismiss the remaining counts, and the Tipton Circuit Court granted the motion. It sentenced Thurman to a combined 75 years for the first two counts to be served consecutively, with a total of 10 years on the remaining counts to be served concurrently.
The Indiana Court of Appeals affirmed in part and reversed in part, concluding that Thurman’s actions related to Soto and Culp were so compressed in terms of time, place, singleness of purpose, and continuity of action, that they constitute one continuous transaction.
“To the extent the State asserts that Counts II, VI, and VIII, the charges related to Thurman’s acts against Soto, pertain to different acts, we note that the prosecutor made no temporal distinction in either the charging information or the jury instructions,” Judge Elaine Brown wrote for the appellate court.
Under the circumstances, it concluded that Count V, pointing a firearm at Culp as a Level 6 felony, and Count VII, criminal recklessness, are included offenses of Count I, attempted murder of Culp. It likewise concluded that Count VI, pointing a firearm at Soto as a Level 6 felony, and Count VIII, criminal recklessness, are included offenses of Count II, attempted murder of Soto.
“For the foregoing reasons, we affirm Thurman’s convictions for attempted murder under Counts I and II, vacate his convictions for pointing a firearm as level 6 felonies under Counts V and VI and his convictions for criminal recklessness as level 6 felonies under Counts VII and VIII, and remand for the trial court to enter a sentence consistent with this opinion,” the appellate court wrote, adding in a footnote that the reversal of Thurman’s convictions under Counts V through VIII does not impact his aggregate sentence.