MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Aug 21 2019, 8:54 am

court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dequarius Walker,                                        August 21, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-124
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Ruth Reichard,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         49G02-1805-MR-14809




Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019                    Page 1 of 22
                                               Case Summary

[1]   Dequarius Walker appeals his conviction and sentence for murder. We affirm.


                                                     Issues

[2]   Walker raises four issues, which we restate as:


              I.       Whether the trial court erred in refusing Walker’s jury
                       instruction on involuntary manslaughter as a lesser
                       included offense.


              II.      Whether the trial court committed fundamental error
                       when it failed to sua sponte instruct the jury on reckless
                       homicide.


              III.     Whether the evidence is sufficient to convict Walker of
                       murder.


              IV.      Whether Walker’s sentence is inappropriate in light of the
                       nature of the offense and Walker’s character.


                                                      Facts

[3]   In May 2018, Jalisa Lacey lived on the West side of Indianapolis with her three

      young daughters. Walker and Lacey were in a relationship, and Walker

      fathered Lacey’s youngest daughter; however, the couple’s relationship had

      ended prior to May 2018.


[4]   In the early morning hours of May 2, 2018, Lacey and her friend, Dennis

      Hendon, were drinking together on Lacey’s porch while Lacey’s young

      daughters slept inside the house. While Lacey and Hendon were on the porch,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 2 of 22
      Walker approached from the back side of Lacey’s home. Walker also lived in

      the neighborhood with his girlfriend. When Walker approached Lacey, Walker

      appeared to be “drunk.” Tr. Vol. II p. 40. Walker asked Lacey what she was

      doing outside late at night, took Hendon’s cigarettes, and poured Lacey’s drink

      on her.


[5]   Lacey requested Walker leave several times, but Walker refused. Lacey

      telephoned Walker’s aunt, Marilyn Johnson, to encourage Walker to leave

      Lacey’s home. Meanwhile, Walker continued to act disrespectfully to Lacey

      and Hendon and called Lacey names such as “w****.” Id. at 43. Johnson

      arrived and Walker became upset that Lacey called Johnson. Johnson also

      believed that Walker had been drinking based on Johnson smelling the alcohol

      on Walker. After Johnson asked Walker to leave Lacey’s home, Walker

      responded that he would not leave.


[6]   Subsequently, a series of events unfolded which Lacey and Johnson understood

      differently. According to Lacey’s testimony, Lacey went inside her home and

      Walker followed her. Then, Lacey and Walker went outside and Walker

      “grabb[ed her] hair, [and tried] to choke [her].” Id. at 47. The altercation

      between Lacey and Walker occurred near Johnson’s car. Lacey testified that

      Johnson told Walker to leave Lacey alone during the altercation.


[7]   Lacey further testified that Hendon picked up a “baseball bat”—which the

      evidence revealed to be a wooden board—and hit Walker while telling Walker

      to “leave [Lacey] alone.” Id. at 50. Surveillance video from the nearby store


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 3 of 22
      shows Hendon picking up the board off the sidewalk. Walker then “[took] the

      [same board] and start[ed] hitting [Hendon].” Id. at 51. Lacey ran away after

      Hendon hit Walker with the board. Lacey testified that she was not exactly

      sure where Walker hit Hendon on his body or how many times Walker hit

      Hendon.


[8]   According to Lacey’s testimony, after Walker hit Hendon, Walker ran away

      through a nearby alley. Hendon appeared to be “dazed out” on the ground. Id.

      at 52. Johnson and Lacey picked Hendon up off the ground, and Lacey called

      the police.


[9]   Johnson’s account differs from Lacey’s. Johnson testified that she never saw

      Walker touch Lacey. Johnson also testified that, at the time of the incident,

      Johnson asked Lacey if Walker touched Lacey, to which Lacey responded that

      Walker had not. Johnson testified that, while her back was to the men, she did

      not hear any arguing or yelling; however, Johnson heard “one loud crack.” Id.

      at 105. Johnson then turned around and observed Walker standing over

      Hendon with the board. Walker “again” attempted to hit Hendon with the

      board; however, Johnson took the board from Walker and “popped [Walker]

      with it twice” before she shoved Walker to the ground. Id. at 106. Johnson

      also acknowledged that she told the police that Walker was “beating on

      [Hendon]” because Hendon was “talking noise to [Walker] all day.” Id. at 108-

      109.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 4 of 22
[10]   After the incident, Johnson continued to speak with Hendon while Lacey called

       the police. Johnson also testified that, at first, Hendon did not respond to her

       or Lacey’s voice; however, “[a]fter about two minutes, he started to come

       around on his own,” and Johnson told Lacey not to move Hendon until the

       medics arrived. Id. at 111.


[11]   Walker also testified in his defense and told a completely different version of

       events. Walker stated that he was speaking with Lacey when suddenly he felt

       something hit the back of his head and turned to see Hendon with the board.

       Walker testified that Hendon hit him about six times, then Walker tried to

       defend himself by taking the board away, and in doing so, Hendon fell down

       when Walker was finally able to take the board away from Hendon. Walker

       claims that he also attempted to help Hendon up once he fell.


[12]   Officer Jon King with the Indianapolis Metropolitan Police Department arrived

       at Lacey’s home at approximately 1:00 a.m., and the medics arrived shortly

       thereafter. Hendon was “lethargic, [and] disoriented,” he had no visible

       injuries, and Hendon walked to the ambulance on his own. Id. at 86. After

       Officer King and the medics evaluated Hendon, Hendon went inside his home.

       Hendon’s home was above the Blue Store, near Lacey’s home.


[13]   Later on May 2, 2018, Lacey went to the Blue Store and told another employee,

       Janice Weaver, that someone should check on Hendon based on the events that

       occurred earlier that morning. Walker also went into the store later, and

       Weaver asked Walker why Walker hit Hendon. Walker replied to Weaver that


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 5 of 22
       Hendon “shouldn’t have been in [Walker’s] f****** business.” Id. at 214.

       Weaver sent someone to check on Hendon and found Hendon unresponsive,

       and 911 was called.


[14]   When medics arrived at Hendon’s residence at 6:55 p.m. on May 2, 2018,

       Hendon was unresponsive, his skin was hot, he had an injury on the left side of

       his head, and he had blood in his left ear. Hendon was breathing, but his heart

       rate was high. Hendon was transported to the hospital and later died.


[15]   On May 3, 2018, the neighborhood had a vigil for Hendon and neighbors

       spotted Walker and chased him. Police were called and they found Walker in a

       crawl space in his girlfriend’s home where he was arrested. The photos taken

       by the police of Walker’s injuries after his arrest demonstrated only minor

       injuries, including minor scabs and scarring, which did not appear to be the

       result of new wounds.


[16]   On May 8, 2018, Walker was charged with Count I, murder, and Count II,

       domestic battery, a Class A misdemeanor. On November 21, 2018, the State

       filed a motion to dismiss Count II, which the trial court granted. Accordingly,

       a new information was filed on November 26, 2018, alleging only Count I,

       murder, stating: “[o]n or about May 2, 2018, [Walker] did knowingly or

       intentionally kill another human being, to-wit: Dennis Hendon.” Appellant’s

       App. Vol. II p. 92.


[17]   Walker’s jury trial took place in November 2018, and witnesses testified to the

       foregoing facts. Dr. Scott Shapiro, a neurosurgeon, testified that Hendon was

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 6 of 22
       admitted to the hospital on May 2, 2018, and died the next day. Hendon’s

       CAT scan demonstrated that Hendon had a “catastrophic intracerebral

       hemorrhage,” which indicated a “[v]ery large hemorrhage in the brain itself.”

       Tr. Vol. II p. 139. Dr. Shapiro further testified that Hendon had a “subdural

       hemorrhage which is usually a manifestation of some type [of] traumatic

       event.” Id. at 140. He stated that: “[t]he intracerebral hemorrhage can be

       caused by a number of things other than trauma but [it is seen] all the time in

       trauma.” Id. Hendon also experienced bleeding in his “subarachnoid space,”

       the space in which “you can get little bleeding in the interstices of all the

       convolutions of the brain,” as well as fractures along the base of his skull. Id. at

       140-41. Hendon’s brain injuries were summarized as “bleeding within the

       brain, on top of the brain and then in another layer that surrounds the brain.”

       Id. at 141. Finally, in terms of brain damage, Hendon had a “massive shift” of

       his brain that “was almost an inch in shift which is catastrophic.” Id. Dr.

       Shapiro classified the brain shift as “just a disaster to have happen.” Id. at 142.


[18]   Hendon’s medical records also indicated that Hendon had a bruise above one

       eye and blood behind one of his eardrums or coming out of Hendon’s ear. Dr.

       Shapiro observed that this is seen often in trauma, “especially when there’s [a]

       skull base fracture.” Id. at 143. Hendon, accordingly, was “brain-dead on

       exam and the scan was unrecusable,” meaning Hendon’s chance of survival

       was “zero.” Id. Dr. Shapiro stated that he had “no idea what happened to

       [Hendon]” and that the injuries “could have been from a fall.” Id. at 144.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 7 of 22
[19]   Dr. Christopher Poulos, the chief forensic pathologist with the Marion County

       Coroner’s Office, testified that Hendon was five-foot-seven-inches and 106

       pounds and had several external and internal injuries. Hendon’s external

       injuries included a scrape on the back of the right shoulder, a bruise and scrapes

       on the left elbow, a scrape on the knee, and scrapes on the left lower leg and

       right lower leg. Hendon’s internal injuries included a fracture of the “cornua of

       the thyroid cartilage,” an injury to the head which resulted in “a lot of

       bleeding” as the most significant injury, and chest wall hemorrhage between the

       ribs on Hendon’s back, consistent with blunt force injuries. Id. at 193, 197. Dr.

       Poulos did not believe Hendon’s injuries on his neck were consistent with

       injuries typically sustained in a fall. Dr. Poulos determined Hendon’s cause of

       death to be “blunt force injury to the head” and ruled Hendon’s death a

       homicide. Id. at 197.


[20]   After all evidence was presented, the parties discussed final jury instructions.

       The trial court considered Walker’s proposed final jury instructions on self

       defense and involuntary manslaughter. Walker argued that an involuntary

       manslaughter instruction was warranted because the State put into evidence

       facts that would indicate Hendon was killed as a result of a battery. After

       argument and discussion, the trial court concluded:


               But what [the Court of Appeals says] is when the State drafts a
               charge of Murder that is “knowingly or intentionally killed
               another human being” and they don’t also allege in the
               information “while committing a battery” or “while committing
               an armed robbery” or while, you know, “holding someone at
               gunpoint,” whatever, that forecloses involuntary manslaughter.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 8 of 22
               And, like I said, I could see some wiggle room if the facts had
               been different into evidence. But based on the defendant’s
               testimony, that is, you know, as I said, I would characterize as
               non-commission, in other words, not even committing a battery,
               you know, when this happened and certainly it’s not charged in a
               way that he was committing another crime, I honestly do not
               think involuntary manslaughter is on the table here as a lesser
               included.


       Tr. Vol. III p. 54. The trial court declined to give the involuntary manslaughter

       instruction; however, the trial court found that a self defense instruction was

       supported by the evidence and instructed the jury regarding self defense. The

       jury found Walker guilty of murder.


[21]   Walker was sentenced on December 18, 2018. The trial court found, as

       aggravating factors, Walker’s criminal history and the fact that Walker was

       serving a sentence for a crime of violence at the time of the instant offense. 1

       The trial court found as mitigating factors that incarceration would be a

       hardship on Walker’s dependent children and that Walker made a statement of

       remorse. The trial court found that the aggravators outweighed the mitigators

       and Walker was sentenced to fifty-eight years in the Department of Correction.

       Walker now appeals his conviction and sentence.




       1
         Walker’s pre-sentence investigation report indicates that Walker was convicted and awaiting a sentence for
       a February 6, 2018 charge for resisting law enforcement, a Class A misdemeanor (the “prior offense”), at the
       time of the instant offense. Walker was sentenced in the prior offense the day before charges were filed
       against him in the instant offense.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019                  Page 9 of 22
                                                    Analysis

                               I.       Involuntary Manslaughter Instruction

[22]   Walker argues that the trial court erred in refusing to tender Walker’s proposed

       instruction on involuntary manslaughter. “The trial court has broad discretion

       as to how to instruct the jury, and we generally review that discretion only for

       abuse.” Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012) (citing Mayes v. State,

       744 N.E.2d 390, 394 (Ind. 2001)). The abuse of discretion standard applies

       when the trial court makes a factual decision regarding whether to tender the

       instruction to the jury. See Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998).

       On the other hand, “if the trial court rejects the tendered instruction on the basis

       of its view of the law, as opposed to its finding that there is no serious

       evidentiary dispute, appellate review of the ruling is de novo.” Id. Under either

       standard, Walker’s argument fails.


[23]   In Evans v. State, 727 N.E.2d 1072, 1080-81 (Ind. 2000), our Supreme Court

       summarized the law regarding the issue of whether a trial court should instruct

       on a lesser included offense:


               In Wright v. State, 658 N.E.2d 563 (Ind. 1995), this Court set forth
               a three-part test for determining when a trial court should instruct
               on a lesser included offense. Part one requires the trial court to
               determine whether the lesser offense is “inherently” included in
               the offense charged by comparing the statute defining the crime
               charged with the statute defining the alleged lesser included
               offense. Id. at 566-67; see also Wilson v. State, 697 N.E.2d 466, 473
               (Ind. 1998). If necessary, part two of the Wright test alternatively
               requires the trial court to determine whether the lesser offense is
               “factually” included in the offense charged by comparing the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 10 of 22
               charging instrument with the statute defining the alleged lesser
               included offense. Wright, 658 N.E.2d at 567.


               Finally, if the court concludes that the lesser offense is either
               inherently or factually included in the offense charged, then part
               three requires the court to determine whether a serious
               evidentiary dispute exists as to which offense was committed by
               the defendant, given all the evidence presented by both parties.
               Id. If a serious evidentiary dispute does exist, it is reversible error
               not to give the instruction on the inherently or factually included
               lesser offense. Id.


[24]   As for the first question of whether involuntary manslaughter is inherently

       included as a lesser offense of murder, Walker concedes that Indiana case law

       indicates that involuntary manslaughter is not inherently included; however,

       Walker argues that, “especially as it applies here, [this case law] is erroneous

       and should be revisited.” Appellant’s Br. pp. 23-24. To the extent Walker is

       inviting us to disagree with our Supreme Court, we decline to do so. See Gill v.

       Gill, 72 N.E.3d 945, 949 (Ind. Ct. App. 2017) (finding that “as Indiana’s

       intermediate appellate court, we are bound to follow Indiana Supreme Court

       precedent”). Instead, we will turn to the next step to consider whether

       involuntary manslaughter was factually included in this case.


[25]   The trial court did not tender to the jury Walker’s involuntary manslaughter

       instruction, concluding that the way in which the State drafted the charging

       information factually precluded involuntary manslaughter. Still, Walker argues

       that the State’s ability to do so defies notions of fairness “because it is logically



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 11 of 22
       impossible to have killed a person without necessarily committing a lesser

       offense.” Appellant’s Br. p. 24.


[26]   The amended charging information stated: “On or about May 2, 2018,

       [Walker] did knowingly or intentionally kill another human being, to-wit:

       [Hendon].” Appellant’s App. Vol. II p. 23. Indiana Code section 35-42-1-4(b)

       provides:


               A person who kills another human being while committing or
               attempting to commit:


                        (1) a Level 5 or Level 6 felony that inherently poses a risk
                        of serious bodily injury;


                        (2) a Class A misdemeanor that inherently poses a risk of
                        serious bodily injury; or


                        (3) battery;


               commits involuntary manslaughter, a Level 5 felony.


[27]   The charging information does not indicate that a battery occurred.

       Accordingly, the trial court was not required to find that involuntary

       manslaughter is a factually lesser included crime here. See Wright, 658 N.E.2d

       at 570 (“the State may only foreclose instruction on a lesser offense that is not

       inherently included in the crime charged by omitting from a charging

       instrument factual allegations sufficient to charge the lesser offense.”); see c.f.,

       Evans, 727 N.E.2d at 1081 (finding that, because the charging information


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 12 of 22
       alleged that the defendant killed the victims by means of a knife, involuntary

       manslaughter was a factually included lesser offense).


[28]   Based on the State’s charging information, no facts or battery were alleged that

       would make involuntary manslaughter a factually included lesser offense here.

       The trial court did not err in declining to instruct the jury on involuntary

       manslaughter because it was neither an inherently included offense or a

       factually included offense based on the charging information. Accordingly, we

       need not move to step three of the Wright analysis. See Norris v. State, 943

       N.E.2d 362, 369 (Ind. Ct. App. 2011) (the trial court “needlessly advanced to

       step three” because, “[b]ased on the State’s drafting of the murder charge,

       instruction on involuntary manslaughter was foreclosed in this case.”), trans.

       denied.


                                    II.      Reckless Homicide Instruction

[29]   Walker next argues that the trial court erred in failing to, sua sponte, give a

       reckless homicide instruction to the jury as a lesser included offense. Walker

       failed to request a jury instruction on reckless homicide; therefore, we will

       review only for fundamental error. As the State correctly points out, the trial

       court raised the issue of reckless homicide, arguing that, like voluntary

       manslaughter, the trial court determined that the facts did not warrant an

       instruction on reckless homicide and Walker never rebutted the trial court’s

       statement or argued to the contrary.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 13 of 22
[30]   “An error may be fundamental and thus not subject to waiver, if it is a

       ‘substantial blatant violation of basic principles.’” Barthalow v. State, 119

       N.E.3d 204, 211 (Ind. Ct. App. 2019) (quoting Moreland v. State, 701 N.E.2d

       288, 294 (Ind. Ct. App. 1998)). The error “must be so prejudicial to the

       defendant’s rights as to make a fair trial impossible.” Id. Fundamental error is

       saved for only “egregious circumstances.” Id.


[31]   In Lane v. State, 953 N.E.2d 625, 630 (Ind. Ct. App. 2011), a panel of this Court

       summarized the law on this issue as follows:


               To the extent Lane argues that failure to give an instruction on
               conversion amounted to fundamental error, his claim fails.
               Essentially, Lane’s argument is that the trial court was required
               to sua sponte give the instruction on conversion despite counsel's
               strategic decision. Our Supreme Court has rejected this notion,
               holding that a trial court’s failure to sua sponte give instructions
               on lesser-included offenses does not constitute fundamental error.
               See Metcalf v. State, 451 N.E.2d 321 (Ind. 1983); see also
               Sarwacinski v. State, 564 N.E.2d 950 (Ind. Ct. App. 1991). To be
               sure, our Supreme Court stated in Helton v. State, 273 Ind. 211,
               213, 402 N.E.2d 1263, 1266 (1980) that “the entitlement to
               included offenses instructions, in an appropriate case, is not a
               fundamental right but rather is one that must be claimed and the
               claim preserved, in accordance with established rules of trial and
               appellate procedure.” The omission of an instruction on the
               lesser-included offense of conversion did not constitute
               fundamental error.


[32]   Walker attempts to distinguish his case from Lane, arguing that here, “there was

       no possible strategic reason not to seek instruction on the lesser included offense

       of reckless homicide.” Appellant’s Br. p. 27. We disagree. Walker’s trial

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 14 of 22
       counsel clearly considered lesser included instructions, and even offered a lesser

       included instruction on involuntary manslaughter. In analyzing the options,

       trial counsel chose not to offer an instruction on reckless homicide. Even if this

       was a poor decision, we will not “second guess counsel’s strategy through the

       distortions of hindsight.” Lane, 953 N.E.2d at 630. Walker’s argument fails.


                                            III.    Sufficient Evidence

[33]   Walker argues the evidence is insufficient to support his murder conviction

       because: (1) the evidence did not demonstrate that Walker knowingly or

       intentionally killed Hendon; and (2) the State failed to disprove Walker’s self

       defense claim. When there is a challenge to the sufficiency of the evidence,

       “[w]e neither reweigh evidence nor judge witness credibility.” Gibson v. State,

       51 N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind.

       1985)). Instead, “we ‘consider only that evidence most favorable to the

       judgment together with all reasonable inferences drawn therefrom.’” Id.

       (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

       supported by ‘substantial evidence of probative value even if there is some

       conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also

       McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though

       there was conflicting evidence, it was “beside the point” because that argument

       “misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will

       affirm the conviction unless no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696

       (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 15 of 22
                                    A. Knowingly or Intentionally Killed

[34]   To convict Walker of murder, the State had to prove that Walker “knowingly

       or intentionally kill[ed] another human being.” Ind. Code § 35-42-1-1. Walker

       argues that, at the very least, Walker’s “reaction, in this brief space of time, may

       show [Walker] intended to commit a battery or that he acted recklessly, but it is

       not sufficient to prove he knowingly or intentionally killed [Hendon].”

       Appellant’s Br. p. 15. “A person engages in conduct intentionally if, when he

       engages in the conduct, it is his conscious objective to do so.” I.C. § 35-41-2-

       2(a). “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.” I.C. § 35-41-2-

       2(b).


[35]   “An intent to kill sufficient to sustain a murder conviction can be established in

       several ways.” Burns v. State, 59 N.E.3d 323, 328 (Ind. Ct. App. 2016), trans.

       denied. Specifically, intent to kill may be inferred from “the use of a deadly

       weapon,” “the nature of the attack and the circumstances surrounding the

       crime,” “[t]he duration and brutality of the attack[,] the relative strengths of the

       defendant and victim,” and “where blows of magnitude are repeated, a jury

       could conclude that the defendant had an intent to kill.” Id.


[36]   Much of Walker’s argument rests on his premise that Hendon’s brain injury

       was caused by a fall to the pavement, and not by being struck on the head. Dr.

       Poulos testified as follows:


               I can say blunt force trauma. I can say more likely having
               occurred by – you know, by a fall onto the back of the head like
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 16 of 22
               I’ve already said. I can say that – you know, from this injury, I
               can say it’s more likely due to a fall. The injury on the neck I can
               say is more likely not due to a fall.


       Tr. Vol. II p. 199. Even though the injury to the head was most significant,

       Hendon also had injuries to the “left back of the head,” and other “multiple

       internal and external injuries.” Id. Dr. Poulos also noted a chest injury that did

       not appear to be consistent with CPR, in addition to other injuries that may be

       consistent with CPR. Additionally, all the witnesses present that evening

       testified that Walker hit Hendon with the board, which is consistent with

       injuries to Hendon’s body.


[37]   Walker—who weighs approximately sixty pounds more than Hendon and is

       many years Hendon’s junior—hit Hendon with a wooden board. The board

       was of such heft that Lacey thought the board was a baseball bat when she first

       observed it. The evidence presented from both Dr. Shapiro and Dr. Poulos

       demonstrated that the harm caused by Hendon’s injuries was severe and,

       ultimately, fatal. Even if the fall is what caused Hendon’s death, Johnson heard

       a loud crack and then Hendon fell to the ground with such force that he

       sustained a fatal injury. This is the type of evidence from which a jury could

       infer Walker’s intent to kill Hendon. For us to conclude otherwise would

       require us to reweigh the evidence, which we cannot do. See Gibson, 51 N.E.3d




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 17 of 22
       at 210. The State presented sufficient evidence regarding the intent element of

       Walker’s murder conviction. 2


                                                     B. Self Defense

[38]   Walker also contends that he presented sufficient evidence of self defense,

       which the State did not rebut. Pursuant to Indiana Code Section 35-41-3-2(c),


                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.


[39]   “A valid claim of self-defense is a legal justification for an otherwise criminal

       act.” Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). “A claim of self-defense

       requires a defendant to have acted without fault, been in a place where he or




       2
         Finally, portions of Walker’s arguments with regard to the sufficiency of the evidence appear to be that, had
       the jury been allowed to consider reckless homicide or involuntary manslaughter, Walker would not have
       been convicted of murder, but instead, would have been convicted of one of the other offenses based on the
       mens rea. Again, this argument is nothing more than a request for us to reweigh evidence and find another
       mens rea more applicable, which we cannot do. See Gibson, 51 N.E.3d at 210.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019                   Page 18 of 22
       she had a right to be, and been in reasonable fear or apprehension of bodily

       harm.” Id. “A claim of self-defense will fail if the person uses more force than

       is reasonably necessary under the circumstances.” Weedman v. State, 21 N.E.3d

       873, 892 (Ind. Ct. App. 2014) (quotations omitted). “Once a defendant claims

       self-defense, the State must disprove, beyond a reasonable doubt, at least one

       element of self-defense.” Carroll v. State, 744 N.E.2d 432, 433 (Ind. 2001). “The

       State may meet its burden by either rebutting the defense directly or relying on

       the sufficiency of evidence in its case-in-chief.” Id. at 434.


[40]   In this case, the trial court gave the jury an instruction on self defense. The

       evidence demonstrates that, although Hendon was the first aggressor between

       the two men, Walker took the board from Hendon and hit Hendon with the

       board more than once. 3 Hendon suffered severe injuries—both internally and

       externally as a result of Walker’s actions whereas, as indicated above, the

       injuries to Walker were minor at best.


[41]   In light of the above facts, it was reasonable for the jury to rely on the State’s

       facts in its case in chief to conclude that Walker’s response to Hendon was not

       reasonable and, therefore, to reject Walker’s self defense argument. Walker’s

       argument on this element is essentially an invitation for us to reweigh the

       evidence, which we cannot do. See Gibson, 51 N.E.3d at 210.




       3
        Although Walker testified in his defense and claimed that he merely took the board from Hendon, which
       caused Hendon to fall and sustain the head injuries, the jury was not required to believe Walker’s version of
       events, especially in light of Lacey’s and Johnson’s testimony to the contrary.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019                   Page 19 of 22
                                         IV.      Inappropriate Sentence

[42]   Lastly, Walker contends that his sentence is inappropriate in light of the nature

       of the offense and Walker’s character. Indiana Appellate Rule 7(B) provides

       that this court may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, we find that the sentence “is

       inappropriate in light of the nature of the offense and the character of the

       offender.” The defendant bears the burden to persuade this court that his or her

       sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct. App.

       2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied.


[43]   In Indiana, trial courts can tailor an appropriate sentence to the circumstances

       presented; the trial court’s judgment receives “considerable deference.” Sanders

       v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008)). In conducting our review, we do not look to see

       whether the defendant’s sentence is appropriate or “if another sentence might

       be more appropriate; rather, the question is whether the sentence imposed is

       inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008)).


[44]   We look to the statutory ranges established for the classification of the offense.

       Walker was found guilty of murder. The sentence for murder ranges from

       forty-five years to sixty-five years, with an advisory sentence of fifty-five years.

       I.C. § 35-50-2-3. Walker was sentenced to fifty-eight years.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 20 of 22
[45]   We first review the nature of Walker’s offense. Walker hit Hendon—a much

       smaller and older man—with a board and using such force that Hendon

       sustained serious head injuries. The head injuries were so extensive that no

       reasonable neurosurgeon would operate on Hendon. 4


[46]   Next, we consider Walker’s character. Walker’s criminal history does not

       reflect well upon his character. Twenty-three-year-old Walker’s criminal

       history includes convictions for intimidation, a Class D felony; resisting law

       enforcement, a Class A misdemeanor; intimidation, a Class D felony; theft, a

       Class D felony; battery, a Class A misdemeanor; dealing in a controlled

       substance, a Level 6 felony; resisting law enforcement, a Class A misdemeanor;

       resisting law enforcement, a Class A misdemeanor; resisting law enforcement

       using a vehicle, a Level 6 felony; leaving the scene of an accident, a Class B

       misdemeanor; criminal confinement, a Level 6 felony; strangulation, a Level 6

       felony; domestic battery in the presence of a child under sixteen, a Level 6

       felony; and resisting law enforcement, a Class A misdemeanor.


[47]   As discussed above, the trial court found, as aggravating factors, Walker’s

       criminal history and the fact that Walker was serving a sentence for a crime of




       4
         In part of his argument, Walker argues that part of the reason his sentence is inappropriate is because of the
       trial court’s statement that Hendon was “beaten to death.” Tr. Vol. III p. 140. According to Walker, this
       statement does not properly characterize the evidence. We will not parse the trial court’s language to
       determine if this is a fair characterization of the evidence because, although we review the nature of the
       offense for purposes of inappropriateness of Walker’s sentence, the trial court did not consider the nature of
       the offense to be an aggravator. See id. (“That being said, I’m not sure the nature and circumstances of the
       crime are an aggravator. I think they’re elements of the crime and, for example, the harm was significant.”).
       The same is true of the photograph the State admitted into evidence at Walker’s sentencing.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019                    Page 21 of 22
       violence at the time of the instant offense. The trial court found two mitigating

       factors: that (1) incarceration would be a hardship on Walker’s dependent

       children; and (2) Walker made a statement of remorse. The trial court weighed

       the aggravating and mitigating factors and found that the aggravators

       outweighed the mitigators. Accordingly, the trial court sentenced Walker to

       three years above the advisory sentence. We cannot say this was inappropriate.


                                                  Conclusion

[48]   The State’s evidence was sufficient to convict Walker of murder, and the State

       presented sufficient evidence to rebut Walker’s claim of self defense. The trial

       court did not err in failing to instruct the jury on involuntary manslaughter, and

       it was not fundamental error for the trial court to fail to, sua sponte, instruct the

       jury on reckless homicide. Additionally, Walker’s sentence is not

       inappropriate. We affirm.


[49]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019   Page 22 of 22
