Engstrom v. State

1

David J. Engstrom, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

No. 22A-CR-413

Court of Appeals of Indiana

February 8, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Tippecanoe Superior Court The Honorable Randy J Williams, Judge Trial Court Cause No. 79D01-2007-F1-10

ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C.

ATTORNEYS FOR APPELLEE Theodore E. Rokita, George P. Sherman.

MEMORANDUM DECISION

Weissmann, Judge.

[¶1] David Engstrom slashed a bicycling teenager's neck and was later convicted of attempted murder. Engstrom appeals his conviction, arguing that the State did not prove he intended to kill the teenager and that prosecutorial misconduct deprived him of a fair trial. He also challenges his 30-year sentence, contending it was based on improper considerations and unduly harsh. Finding no error, we affirm both his conviction and sentence.

Facts

[¶2] Seventeen-year-old M.G. was bicycling past Engstrom in a Lafayette alley when Engstrom reached out and slashed M.G.'s neck with a knife. Bleeding and in great pain, M.G. stopped at a nearby house for help. Police were called and quickly apprehended Engstrom, who was still nearby and carrying a folding knife. M.G. was rushed to the hospital, where his wound was sutured. The hospital released M.G. the next day.

[¶3] The State charged Engstrom with Level 1 felony attempted murder, Level 3 felony aggravated battery, two counts of Level 5 felony battery, and Level 6 felony criminal recklessness. While in jail awaiting trial, Engstrom told his aunt during a recorded telephone call that he intentionally attacked the teenager M.G. for the attention the crime would bring him.

[¶4] At his two-day jury trial, Engstrom conceded that he cut M.G.'s neck but denied any intent to kill him. The jury returned verdicts of guilty on all five charged offenses, but the trial court entered conviction only as to the attempted murder count. The court sentenced Engstrom to 30 years imprisonment, with 2 years suspended to probation. Engstrom appeals both his conviction and sentence.

Discussion and Decision

[¶5] Engstrom claims the State failed to prove beyond a reasonable doubt that he had the specific intent to kill M.G.-an essential element of attempted murder. Engstrom also alleges he was denied a fair trial through prosecutorial misconduct during closing arguments. Lastly, Engstrom alleges the trial court abused its discretion when considering aggravating and mitigating circumstances during his sentencing and that his 30-year sentence is inappropriate under Indiana Appellate Rule 7(B) in light of the nature of the offense and the character of the offender.

[¶6] We conclude the State proved Engstrom's specific intent to kill M.G. We also conclude that Engstrom was not deprived of a fair trial through prosecutorial misconduct because either the prosecutor's statements were not misconduct or Engstrom failed to show he was placed in grave peril. We also find no sentencing error and that the 30-year sentence was not inappropriate.

I. Sufficient Evidence of Intent to Kill

[¶7] Attempted murder occurs when a person, acting with the specific intent to kill, engages in conduct that constitutes a substantial step toward killing another person. Ind. Code §§ 35-42-1-1(1), -41-5-1(a). Engstrom claims the State failed to prove beyond a reasonable doubt that he acted with the specific intent to kill M.G.

[¶8] In reviewing the sufficiency of the evidence, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or reweigh evidence and reverse only where no reasonable factfinder could find all elements of the crime proven beyond a reasonable doubt. Id.

[¶9] In support of his argument that the State failed to prove his specific intent to kill, Engstrom points to evidence showing he did not know M.G., he cut M.G. in an alley equipped with a security video, he casually walked around the area immediately after committing the offense, and he admitted committing the offense to gain attention and make friends in jail. Engstrom also notes that he used a pocketknife in the attack and did not pursue M.G. afterward.

[¶10] The jury could reasonably infer Engstrom's specific intent to kill from his use of a deadly weapon. In Miller v. State, 106 N.E.3d 1067, 1074 (Ind.Ct.App. 2018), this Court ruled that a pocketknife was a "deadly weapon" from which an intent to kill could be inferred when the knife was used to slit the victim's throat.^[1] Here, evidence showed Engstrom cut M.G.'s throat with the pocketknife, causing M.G. to feel that his neck had been "unzipped" and that he would die. Tr. Vol. II, p. 119. The cut was deep enough to require hospitalization. These facts could have convinced a reasonable jury that Engstrom possessed the intent to kill.

[¶11] As for Engstrom's claim that lack of motive undermined the State's case, we note that we affirmed an attempted murder conviction under similar facts in Miller. Miller attacked a stranger with no evidence of motive, and walked away after slitting the victim's throat. Miller, 106 N.E.3d at 1069. Engstrom's claim merely asks us to reweigh the evidence before the jury and reach a different conclusion. As in Miller, we find the evidence was sufficient to establish Engstrom acted with the specific intent to kill M.G. when he sliced the teenager's neck.

II. Prosecutorial Misconduct

[¶12] Engstrom next claims he did not receive a fair trial because the prosecutor committed misconduct during closing argument by commenting on Engstrom's failure to testify and by improperly vouching for the strength of the State's case. When reviewing a claim of prosecutorial misconduct, we first determine whether the prosecutor engaged in misconduct. Craft v. State, 187 N.E.3d 340, 347 (Ind. 2022). We then consider whether that misconduct, measured by case law and the Indiana Rules of Professional Conduct, placed the defendant in a position of grave peril to which he should not have been subjected. Id.

[¶13] We measure the gravity of the peril by the probable persuasive effect of the misconduct on the jury's decision, not the degree of the conduct's impropriety. Collins v. State, 966 N.E.2d 96, 106 (Ind. 2012). We reverse when the evidence is close and the trial court does not alleviate the prejudicial effect of the misconduct. Turnbow v. State, 637 N.E.2d 1329, 1333-34 (Ind.Ct.App. 1994). A. Comments on Failure to Testify

[¶14] Engstrom focuses his prosecutorial misconduct claim on two sections of the prosecutor's closing arguments. In the first, the prosecutor argued:

[Prosecutor]: . . . Knowingly or intentionally. A person engages in conduct intentionally when he engages in the conduct, it is his conscious objective to do so. 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. So, again, similar to specific intent, hard to know without specifically hearing the words from the defendant's mouth himself. During the altercation. However, --- (sic)

[Defense Counsel]: Judge, objection . . . Tr. Vol. II, p. 171.

[¶15] In a hearing outside the presence of the jury, Engstrom argued that the prosecutor's statements amounted to a comment on Engstrom's failure to testify. The trial court overruled Engstrom's objection, finding the prosecutor was merely stating that the jury could infer from Engstrom's statements during jail calls that his actions were knowing and intentional. App. Vol. IV, pp. 13133.

[¶16] The prosecutor continued with her closing argument, during which she later stated:

He already touched on it. Your head doesn't come off like a screw top, I can just pull off and look in your brain and say yep, there it is, you do have specific intent. I have to infer from your actions, from what you did. (Inaudible). He didn't go down and slash on his calf, no, he went right across his neck. The only instances in which we would have specific intent that would apparently satisfy, (inaudible), actually said, I specifically intended to kill and I'm sorry, ladies and gentleman [sic], you're just not going to get that. You have to use your common sense, through all that inferences and the inferences in this case (inaudible) . . .

What you will not see in there is any instruction on (inaudible), not self-defense. There (inaudible) no evidence, there is no evidence, you heard no evidence, all you heard was (inaudible). (Inaudible) about straight forward as a case can be and I'm asking you to find him guilty as charged.

App. Vol. II, pp. 171, 181-82, 184.

[¶17] On appeal, Engstrom claims that the prosecutor's comments on Engstrom's failure to testify violated his right against self-incrimination under the Fifth Amendment to the United States Constitution. The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. A prosecutor violates this right when making "a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence." Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996). Engstrom bears the burden of proving the remark penalized his exercise of the right to remain silent. Id. at 736.

[¶18] Engstrom has not established prosecutorial misconduct. The statements suggesting the jury had not heard evidence of self-defense were an appropriate statement of fact about the issues before the jury, not a comment...