      MEMORANDUM DECISION
                                                                        Mar 03 2015, 9:12 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Michael C. Borschel                                      Gregory F. Zoeller
      Fishers, Indiana                                         Attorney General of Indiana
                                                               Kenneth E. Biggins
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Elijah Moore,                                            March 3, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               49A02-1408-CR-587
              v.
                                                               Appeal from the Marion Superior
      State of Indiana,                                        Court
                                                               Honorable Marc T. Rothenberg,
      Appellee-Plaintiff.
                                                               Judge
                                                               Case No. 49G02-1310-MR-65911




      Robb, Judge.



                                Case Summary and Issues
[1]   Following a jury trial, Elijah Moore was convicted of felony murder and

      attempted robbery as a Class C felony. Moore appeals his convictions, raising
      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-587 | March 3, 2015      Page 1 of 8
      two issues for our review: (1) whether the trial court erred by denying Moore’s

      motion for judgment on the evidence; and (2) whether there was sufficient

      evidence to convict Moore, where he claimed his acts were justified by defense

      of a third person. Concluding the denial of Moore’s motion for judgment on

      the evidence was proper and that there was sufficient evidence to disprove

      Moore’s claim of defense of a third person, we affirm.



                            Facts and Procedural History
[2]   In January 2013, Moore initiated a conversation with his girlfriend Kelsey Lang

      about his desire to rob someone and asked her if she knew of anyone he could

      rob. Lang told Moore that potential targets for a robbery were two men—Cory

      Harold and David McMiller—from whom she regularly purchased marijuana.

      Moore inquired as to McMiller’s physical stature and whether he kept any

      weapons in his home. He also had Lang tell him where the two men hid their

      marijuana and explain the layout of their apartment.


[3]   Two months later on March 6, 2013, Lang contacted Harold and McMiller

      about coming to their apartment to purchase marijuana that day. Harold was

      at work, but McMiller told Lang that he would leave the door unlocked for her.

      Shortly after Lang’s conversation with McMiller, Moore contacted Lang and

      told her that he and Jordan Heath-Gentry wanted to buy some marijuana, and

      Lang gave him McMiller’s address.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-587 | March 3, 2015   Page 2 of 8
[4]   Moore and Heath-Gentry drove across town to McMiller’s apartment and

      entered through the unlocked front door. After the two men entered, Heath-

      Gentry drew a handgun and pointed it at McMiller, demanding money and

      marijuana. McMiller then began to fight both Moore and Heath-Gentry,

      during which time the gun fell to the floor. At some point, McMiller was able

      to retrieve a knife from the kitchen and cut Heath-Gentry’s hand, causing him

      to bleed heavily. Moore picked up the gun off the floor and shot McMiller

      twice in the torso. Moore and Heath-Gentry then fled the apartment, taking

      McMiller’s marijuana with them.


[5]   When police arrived at McMiller’s apartment, they found traces of Heath-

      Gentry’s blood on the apartment’s stairway bannister, porch, and sidewalk.

      The police also found that someone had ransacked the dresser drawers in

      Harold’s bedroom and that a small amount of marijuana and approximately

      $100 was missing. No blood was found inside Harold’s bedroom.


[6]   In August 2013, Officer Chris Craighill obtained a warrant to gather DNA

      samples from Moore and Heath-Gentry. Officer Craighill showed Moore a

      picture of McMiller and told Moore his name came up in a homicide

      investigation, but Moore pretended not to recognize McMiller or know

      anything about a homicide at McMiller’s apartment. However, Moore later

      gave a statement in October admitting that he shot McMiller but claiming that

      he did not know Heath-Gentry rode with him to McMiller’s apartment with the

      intention of robbing McMiller.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-587 | March 3, 2015   Page 3 of 8
[7]   On October 8, 2013, the State charged Moore with Count 1, felony murder, and

      Count 2, attempted robbery, a Class A felony. The charging information was

      later amended to add Count 3, intentional murder. A two-day jury trial began

      on June 30, 2014. At the close of the State’s case-in-chief, Moore made a

      motion for judgment on the evidence, arguing the State failed to present

      evidence on the “knowingly” element of attempted robbery. The trial court

      denied Moore’s motion, and the jury found Moore guilty of all three counts.


[8]   At sentencing, the trial court vacated Count 3 and reduced Count 2 to a Class C

      felony. Moore was sentenced to fifty-eight years on Count 1 and five years on

      Count 2, to be served concurrently. This appeal followed.



                                 Discussion and Decision
                               I. Judgment on the Evidence
[9]   Moore claims the trial court erred by denying his motion for judgment on the

      evidence. We apply the same standard of review for a denial of a motion for

      judgment on the evidence as for a claim of insufficient evidence. Jones v. State,

      472 N.E.2d 1255, 1259 (Ind. 1985). When reviewing a defendant’s claim of

      insufficient evidence, the reviewing court will neither reweigh the evidence nor

      judge the credibility of the witnesses, and we must respect “the jury’s exclusive

      province to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126

      (Ind. 2005) (citation omitted). We consider only the probative evidence and

      reasonable inferences supporting the verdict. Id. And we must affirm “if the

      probative evidence and reasonable inferences drawn from the evidence could
      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-587 | March 3, 2015   Page 4 of 8
       have allowed a reasonable trier of fact to find the defendant guilty beyond a

       reasonable doubt.” Id. (citation omitted).


[10]   Moore maintains that there is no evidence that he “knowingly” committed the

       crime of attempted robbery. According to Moore, he drove to McMiller’s

       apartment with Heath-Gentry only to purchase marijuana, and he did not know

       that Heath-Gentry intended to rob McMiller once they arrived.


[11]   To prove Moore committed the crime of attempted robbery, the State was

       required to prove that he (1) took a substantial step toward (2) knowingly or

       intentionally (3) taking property from another person (4) by force or threat of

       force or by putting any person in fear. See Ind. Code § 35-41-5-1; Ind. Code §

       35-42-5-1. A person acts “knowingly” if, when he engages in the conduct, he is

       aware of a high probability that he is doing so. Ind. Code § 35-41-2-2(b).


[12]   In Indiana, there is no distinction between the criminal liability of a principal

       and an accomplice “who knowingly or intentionally aids, induces or causes

       another person to commit an offense . . . .” See Wise v. State, 719 N.E.2d 1192,

       1198 (Ind. 1999) (quoting Ind. Code § 35-41-2-4). Factors considered in

       determining whether a person aided another in commission of a crime include

       “(1) presence at the scene of the crime; (2) companionship with another

       engaged in criminal activity; (3) failure to oppose the crime; and (4) a

       defendant’s conduct before, during, and after the occurrence of the crime.”

       Garland v. State, 788 N.E.2d 425, 431 (Ind. 2003).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-587 | March 3, 2015   Page 5 of 8
[13]   The facts of this case are such that a jury could reasonably conclude that Moore

       knowingly participated in the crime of attempted robbery. Moore’s

       predisposition for committing this particular crime is shown by Lang’s

       testimony that Moore asked if she knew of anyone whom he could rob, and

       upon learning about Harold and McMiller’s apartment, Moore asked about

       their physical stature, for a description of the apartment layout, and where they

       hid their drugs.


[14]   Consideration of the factors set out in Garland also allow for an inference that

       Moore was a willing participant. Moore was present at the crime scene for the

       entirety of the attempted robbery, and there is clear evidence of companionship

       between Moore and Heath-Gentry, as the two men were friends and drove

       together to McMiller’s apartment. Moore’s conduct during and after the crime

       would also allow the jury to infer his guilt. When McMiller and Heath-Gentry

       tussled, Moore aided Heath-Gentry and also fought against McMiller before

       eventually shooting him twice in the torso. Further, Moore stole marijuana

       from the apartment after shooting McMiller, contradicting his claim that he had

       no intent to rob McMiller. Finally, the police found no traces of Heath-

       Gentry’s blood in Harold’s ransacked bedroom, allowing for an inference that

       Moore—not Heath-Gentry—was the one who stole marijuana and money from

       Harold’s room after McMiller was shot.


[15]   The evidence in this case was sufficient to allow the jury to find Moore guilty of

       attempted robbery. Therefore, the trial court did not err by denying Moore’s

       motion for judgment on the evidence.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-587 | March 3, 2015   Page 6 of 8
                              II. Defense of a Third Person
[16]   Second, Moore argues that his act of shooting McMiller was justified by his

       desire to defend Heath-Gentry. As to Moore’s right to defend himself or a third

       person by way of deadly force, Indiana law provides:

               A person is justified in using reasonable force against any other person
               to protect the person or a third person from what the person
               reasonably believes to be the imminent use of unlawful force.
               However, a person:
                       (1) is justified in using deadly force; and
                       (2) does not have a duty to retreat;
               if the person reasonably believes that that force is necessary to prevent
               serious bodily injury to the person or a third person or the commission
               of a forcible felony.
[17]   Ind. Code § 35-41-3-2(c). To prevail on a claim of self-defense or defense of a

       third person, the defendant must show that he: “(1) was in a place where he had

       a right to be; (2) did not provoke, instigate, or participate willingly in the

       violence; and (3) had a reasonable fear of death or great bodily harm.” Simpson

       v. State, 915 N.E.2d 511, 514 (Ind. Ct. App. 2009) (quotation omitted), trans.

       denied. When a defendant claims defense of a third person, the State bears the

       burden of disproving at least one of the necessary elements beyond a reasonable

       doubt. Id. The State may do so either by affirmatively rebutting the claim of

       self-defense or by simply relying on the sufficiency of evidence presented in its

       case in chief. Id. Our standard of review is the same as it is for any claim of

       insufficient evidence. Id.


[18]   Moore cannot succeed by claiming defense of a third person. There is sufficient

       evidence to prove that Moore went to McMiller’s apartment with the intent to
       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-587 | March 3, 2015   Page 7 of 8
       rob him and that Moore and Heath-Gentry entered the apartment without

       permission from McMiller. Thus, Moore and Heath-Gentry were not in a place

       where they had a right to be at the time Moore shot McMiller. Furthermore,

       Heath-Gentry instigated the violence by pointing a gun at McMiller inside

       McMiller’s own home, and Moore then willingly participated in the fight that

       eventually led to him shooting and killing McMiller.                  Under these

       circumstances, there is sufficient evidence to rebut Moore’s defense of a third

       person claim.



                                               Conclusion
[19]   Concluding there was sufficient evidence to prove Moore knowingly committed

       attempted robbery and to disprove Moore’s claim of defense of a third person,

       we affirm.


[20]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-587 | March 3, 2015   Page 8 of 8
