MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Feb 15 2017, 8:26 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Allison Moore,                                           February 15, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         69A05-1601-CR-68
        v.                                               Appeal from the Ripley Circuit
                                                         Court
State of Indiana,                                        The Honorable Jeffrey L. Sharp,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         69C01-1301-MR-1



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 69A05-1601-CR-68 | February 15, 2017   Page 1 of 15
                                                Statement of the Case
[1]   Allison Moore (“Moore”) appeals the sentence imposed following her

      convictions for murder,1 Class B felony burglary,2 and Class B felony conspiracy

      to commit burglary.3 She specifically contends that the trial court abused its

      discretion in imposing consecutive sentences and that her one-hundred-and-five

      (105) year sentence is inappropriate. Concluding that the trial court did not

      abuse its discretion in imposing consecutive sentences and that her sentence is

      not inappropriate, we affirm.


                                                       Issues
                  1. Whether the trial court abused its discretion in imposing
                     consecutive sentences.

                  2. Whether Moore’s sentence is inappropriate.

                                                       Facts
[2]   While having dinner on December 29, 2012, twenty-two-year-old Ohio resident

      Moore asked her mother if she would “tell on” Moore if Moore told her that

      she had killed someone. (Tr. 2404). Moore’s mother responded that she

      would, and Moore replied that she would not confide in her mother if she ever

      did anything like that.




      1
          IND. CODE § 35-42-1-1.
      2
          I.C. § 35-43-2-1.
      3
          I.C. § 35-43-2-1; I.C. § 35-41-5-2.


      Court of Appeals of Indiana | Memorandum Decision 69A05-1601-CR-68 | February 15, 2017   Page 2 of 15
[3]   After dinner, Moore and her fifteen-year-old neighbor D.H. (“D.H.”) picked up

      D.H,’s friends, fifteen-year-old K.B. (“K.B.”), fifteen-year-old S.N. (“S.N.”),

      and S.N.’s nineteen-year-old brother Ben Nichols (“Nichols”). While they were

      riding around in Moore’s car, D.H., who knew that S.N. carried a .40 caliber

      handgun, suggested stealing money and drugs from Ryan Jackson (“Jackson”)

      in Cross Plains, Indiana. D.H. claimed that he thought Jackson would have a

      “couple of thousand dollars.” (Tr. 2020).


[4]   The drive from Ohio to Cross Plains in Moore’s car took forty-five minutes to

      an hour. Along the way, Moore and the young men smoked marijuana. When

      they arrived at Jackson’s house, Moore parked down the street. D.H. and S.N.

      covered their faces with a mask, walked to Jackson’s front door, and kicked it

      open. Jackson’s mother was asleep on the couch, and Jackson was in his

      bedroom with his girlfriend, Emily Spencer-King (“Spencer-King”).


[5]   When D.H. opened Jackson’s bedroom door, Jackson slammed it shut. D.H.

      kicked the door back open and told Jackson he was “going to kill this b[****]

      on the couch if you don’t come out.” (Tr. 2029). Jackson opened the door, and

      S.N. pointed the gun at Jackson and Spencer-King and demanded money and

      marijuana. Jackson gave D.H. and S.N. two bags of marijuana and $300.00 to

      $400.00. The two young men ran back to Moore’s car and gave the money to

      Moore, who needed it for a trip to Georgia.


[6]   The young men wanted to go home, but a dissatisfied Moore said they “needed

      to get another one.” (Tr. 2034). Moore drove to a house that D.H. was


      Court of Appeals of Indiana | Memorandum Decision 69A05-1601-CR-68 | February 15, 2017   Page 3 of 15
      familiar with but the young men did not attempt to go inside because of an

      alarm system. D.H. suggested one more stop in Milan and directed Moore to

      sixty-eight-year-old Nancy Hershman’s (“Hershman”) house. When they

      arrived at approximately 12:30 a.m., Moore got out of the car with D.H. and

      S.N. because she did not “think [they] were doing anything right.” (Tr. 2040).

      Specifically, Moore told the young men that they were “being a bunch of

      p***ies.” (Tr. 2122-23). Moore asked S.N. for his gun and a glove, which he

      gave her. He also instructed her on how to use the gun’s safety.


[7]   Moore, D.H., and S.N. approached Hershman’s house, and D.H. kicked open

      the back door. Moore went inside first and the two young men followed.

      While the young men looked around the house for items to steal, Moore

      headed directly to a downstairs bedroom, where she discovered Hershman,

      who was in her pajamas. When Hershman began screaming, Moore told her to

      “shut up, b****” and not to test her. (Tr. 2178). Hershman pushed Moore and

      reached for the gun. Moore pushed Hershman back and shot her in the throat.


[8]   After the shooting, Moore, D.H., and S.N. quickly ran out of the house without

      taking any property. On the way back to the car, S.N. asked for his gun back

      because he was afraid that Moore might shoot him too. When they got back to

      the car, Moore told K.B. and Nichols that she had shot a woman. Moore

      further stated that she “thought [she] would have had a little bit more remorse

      for killing somebody but [she] didn’t.” (Tr. 2068). Moore drove the four young

      men back to Ohio.



      Court of Appeals of Indiana | Memorandum Decision 69A05-1601-CR-68 | February 15, 2017   Page 4 of 15
[9]    Hershman’s daughter, Dawn Evans (“Evans”), who had been upstairs watching

       television when she heard a thud, went downstairs and found her mother lying

       in her bedroom doorway. Evans put a towel on Hershman’s neck to try and

       stop the bleeding. However, because of the extent of Hershman’s injury, there

       was nothing Evans could do to help her mother, and Hershman died in front of

       Evans.


[10]   D.H., S.N., K.B., and Nichols eventually confessed, and the police questioned

       and arrested Moore.4 She was subsequently charged with: (1) murder for

       killing Hershman; (2) burglary for breaking and entering Hershman’s home

       with the intent to commit theft; and (3) conspiracy to commit burglary for

       agreeing with D.H. or S.N. to commit the burglary of Jackson’s home. A jury

       convicted Moore as charged.


[11]   At the December 2015 sentencing hearing, Ripley County Sheriff’s Office

       Deputy and jail administrator Bob Curl (“Deputy Curl”) testified that Moore

       had received thirteen jail write-up reports for incidents such as using abusive

       language to staff, failing to comply with staff orders, throwing objects at staff,

       and attempting to destroy property of the staff. In addition, while incarcerated,

       Moore was charged with battery resulting in bodily injury as a Class A

       misdemeanor for knowingly or intentionally touching another inmate in a rude,




       4
         The trial court granted Moore’s motion to suppress her police statement. This Court affirmed the
       suppression in an interlocutory appeal. See State v. Moore, 23 N.E.3d 840 (Ind. Ct. App. 2014).

       Court of Appeals of Indiana | Memorandum Decision 69A05-1601-CR-68 | February 15, 2017         Page 5 of 15
       insolent, or angry manner and intimidation for threatening an inmate that had

       testified at Moore’s trial.


[12]   Following the sentencing hearing, the trial court issued a detailed seventeen-

       page Pronouncement of Sentence, which provides in relevant part as follows:


                                            Aggravating Factors

               [1.] Nature and circumstances of the crime - Murder and
               Burglary of Nancy Hershman

               The Court finds the nature and circumstances of the crimes
               committed by the defendant as a significant aggravating factor.
               The facts supported by the evidence introduced at trial show that
               the defendant murdered Nancy Hershman after breaking into her
               home in the early morning hours of December 30, 2012. The
               defendant entered the home armed with a .40 caliber handgun
               loaded with hollow point bullets. Just hours prior to the murder
               the defendant asked her mother over dinner, “If I ever killed
               anyone, would you tell on me.” Prior to entering the home, the
               defendant retrieved the gun and glove from one of the co-
               defendants.

                                            *        *       *        *

               Mrs. Hershman was a random unsuspecting victim lying in her
               bed presumably safe and secure in her home. The Court finds
               that this type of crime is extremely heinous in nature. The
               victim’s family continues to feel its effects. Someone randomly
               picking your house and kicking in the door armed with a deadly
               weapon in the middle of the night is a horrific nightmare. There
               was very little, if anything, a home owner or law enforcement
               could do to prevent this horrific offense. A person who chooses
               to act with such disregard for another human being’s life and


       Court of Appeals of Indiana | Memorandum Decision 69A05-1601-CR-68 | February 15, 2017   Page 6 of 15
        property, and take complete control of another’s fate commits the
        very worst type of crime.

                                 *       *        *        *

        A sixty-eight-year-old woman, unarmed and outnumbered,
        screamed out and made desperate attempts to grab the gun. The
        Court can only imagine the sheer terror that Mrs. Hershman
        must have felt in the final moments of her life.

                                     *        *       *        *

        Therefore, after reviewing the nature of the offense and the facts
        surrounding the crime the Court finds that this was a particularly
        heinous, terrorizing, and deliberate act and considers this to be a
        significant aggravating circumstance.

        [2.] Nature and circumstances of the crime - Conspiracy to
        commit Burglary of Ryan Jackson and Emily Spencer-King

        The evidence shows that the defendant made an agreement with
        the co-defendants [D.H.] and [S.N.] to rob Ryan Jackson. These
        parties discussed this plan in the car ride from Colerain, Ohio to
        Ryan Jackson’s home in Cross Plains. The defendant was the
        driver of the car and completed the overt act as charged by
        driving to the victim’s home. The parties had a lengthy car ride
        to think about this plan. It was not an impulsive act but yet
        another deliberate violent crime committed by the defendant.

                                     *        *       *        *

        Once again the Court cannot think of a more frightening
        situation than to be awakened from your sleep by an individual
        pointing a firearm at you. This burglary was particularly heinous
        in that the parties were armed with a deadly weapon and
        threatened to not only shoot Mr. Jackson (the intended victim),

Court of Appeals of Indiana | Memorandum Decision 69A05-1601-CR-68 | February 15, 2017   Page 7 of 15
        but also his mother. The fact that the burglary took place at night
        when the victim was at home and in bed, and committed while
        armed with a deadly weapon makes this crime particularly
        egregious and goes beyond the basic elements of the offense.

                                 *       *        *        *

        The Court finds the facts particularly egregious considering this
        burglary took place at night, while the victims were home asleep
        in bed, armed with a deadly weapon and threatened to shoot the
        victim and his mother. . . . Therefore, the Court finds that nature
        and circumstances of the crime a significant aggravating factor.

        [3.] Victim over 65

        Under I.C. § 35-38-1-7.1(3), the Court may consider an
        aggravating factor that the victim was at least sixty-five years of
        age at the time the defendant committed the offense. At the time
        of Mrs. Hershman’s murder she was sixty-eight years old.
        Therefore, the Court finds this to be an aggravating
        circumstance.

        [4.] Lack of Remorse

        [T]he defendant stated immediately after the shooting that, “I’ve
        never shot anyone before, I don’t know how to feel, and I
        thought I would feel worse.” The Court finds that the words
        spoken by the defendant immediately after the shooting, outside
        the setting of a sentencing hearing, as extremely persuasive in
        determining the defendant’s level of remorse.

        After viewing the defendant’s demeanor through the course of
        these proceedings and considering the defendant’s testimony at
        sentencing and letter to the court with the statements made
        immediately after the shooting, the Court finds the defendant’s
        alleged remorse as nothing more than shallow self-serving

Court of Appeals of Indiana | Memorandum Decision 69A05-1601-CR-68 | February 15, 2017   Page 8 of 15
        attempts to help her cause and not true acts of remorse or
        acceptance of responsibility for her actions. The Court finds the
        lack of remorse as a significant aggravating factor.

        [5.] Character of the defendant

        Testimony was presented at trial that the defendant was
        aggravated with the co-defendants for not breaking into a
        residence in between Ryan Jackson’s residence and Mrs.
        Hershman’s home. She was so aggravated that when they got to
        Mrs. Hershman’s residence, the defendant stated she was going
        in because the co-defendants weren’t doing it right.

                                     *        *       *        *

        While incarcerated the defendant has received thirteen separate
        jail write ups, ranging from abusive language to staff, failing to
        comply with orders from staff, throwing objects at jail staff, and
        attempting to destroy property of the jail. . . . The defendant has
        been involved in at least three separate physical altercations
        while incarcerated. One of which led to a new charge of Battery.
        . . . The Court also finds it significant that the defendant
        threatened, Amanda Napier, a jail house informant who testified
        against her. . . . This threat resulted in a separate charge of
        Intimidation as a Level 6 felony.

        The Court finds that the defendant’s lack of respect for authority
        and rules, inability to control her anger and propensity for
        violence as aggravating circumstances. Furthermore, the Court
        finds that these character traits indicate that the defendant is an
        extreme danger to the community and likely to reoffend.

        [6.] Victim Impact

        The Court considers the impact this crime had on Mrs.
        Hershman’s family a significant aggravating circumstance.

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               Dawn Evans, Mrs. Hershman’s daughter, testified that a large
               part of her life is now gone. . . . The Court also recalls her
               testimony at trial and the 911 call. Ms. Evans was the first
               person to find her mother. She witnessed firsthand the damage
               to the throat of her mother caused by the bullet. She placed a
               towel on the wound in an attempt to help: but due to the extent
               of the damage there was nothing she could do. On the 911 call
               you can hear the fear, desperation and terror in her voice, stating,
               “My mother is dying right in front of me.” She is now not able
               to live in the home because of these events.

                                            *        *       *        *

               The Court recognizes that in any murder there will be an impact
               on family members. A loved one is lost and the family loses
               everything that comes with that. However, in this case the court
               considers the impact on the family with regards to the evidence
               presented at trial. They had to hear Mrs. Hershman referred to
               as a [b****] and “old lady.” They had to listen to the co-
               defendants recount the details of the shooting. They had to view
               pictures of Mrs. Hershman lying dead in the doorway of her
               bedroom. They had to listen to a detailed account of the damage
               done by the bullet to Mrs. Hershman’s body. They had to view
               pictures of the wounds taken during the autopsy showing the
               [three] inch hole in Mrs. Hershman’s throat. . . .

               Therefore, the Court considers the impact on the victim’s family
               to be greater than the expected or normal impact in a murder and
               considers it a significant aggravating circumstance.

               (Appellant’s App. Vol. 6, 2-11).

[13]   [The trial court sentenced Moore to sixty-five (65) years for murder, twenty (20)

       years for burglary, and twenty (20) years for conspiracy to commit burglary.

       The court further ordered the sentences to run consecutively to each other, for

       Court of Appeals of Indiana | Memorandum Decision 69A05-1601-CR-68 | February 15, 2017   Page 10 of 15
       an aggregate sentence of one-hundred and five (105) years in the Department of

       Correction].


               The Court recognizes that this is the maximum possible penalty
               allowed under the law. The Court also believes that maximum
               penalties should be reserved for the worst offenses and the worst
               offenders. Given the nature and circumstances of this heinous
               crime, the character of the defendant, a complete lack of remorse
               or acceptance of responsibility, and the impact on the victim’s
               family the Court finds such sentence is warranted in this matter.

               Furthermore, the Court finds that after reviewing all of the facts
               of this case, specifically, the deliberateness of the defendant’s
               actions, the randomness of the victim, the complete disregard of
               human life exhibited by shooting a human being in the throat
               with a .40 caliber hollow point bullet in the sanctuary of their
               home; along with the fact that the victim was a sixty-eight year
               old woman, unarmed and outnumbered, that this violent act
               exhibited a level of malicious intent far beyond what was
               necessary. Therefore, after reviewing those factors the Court
               finds the defendant is an extreme danger to society and highly
               likely to reoffend.

[14]   (Appellant’s App. Vol. 6, 18-19). Moore now appeals.


                                                   Decision
[15]   Moore appeals her one-hundred-and-five-year sentence. She specifically argues

       that the trial court erred in imposing consecutive sentences and that her

       sentence is inappropriate. We address each of her contentions in turn.


[16]   1. Consecutive Sentences




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[17]   Moore first argues that the trial court erred in imposing consecutive sentences.

       The decision to impose consecutive sentences lies within the discretion of the

       trial court. IND. CODE § 35-50-1-2. We will affirm an order of consecutive

       sentences if it is supported by a statement of the trial court’s reasoning and at

       least one aggravating circumstance. McBride v. State, 992 N.E.2d 912, 919-20

       (Ind. Ct. App. 2013), trans. denied.


[18]   Here, the trial court explained its reasoning in a sixteen-page order that listed

       six detailed aggravating circumstances, none of which are challenged by Moore

       on appeal. These aggravating circumstances included the heinous nature and

       horrific circumstances of the offenses, the age of the victim, Moore’s lack of

       remorse, Moore’s poor character as demonstrated by her lack of respect for

       authority and rules as well as her inability to control her anger, and the

       significant impact of the crime on Hershman’s family. These aggravating

       circumstances amply support the trial court’s imposition of consecutive

       sentences, and we find no abuse of the trial court’s discretion.5


       2. Inappropriate Sentence


[19]   Moore also argues that her one-hundred-and-five-year sentence is

       inappropriate. Indiana Appellate Rule 7(B) provides that we may revise a




       5
        Moore further argues that “concurrent sentences more fairly reflect [the] episodic nature of [the] Hershman
       burglary and murder.” (Moore’s Br. 24). However, as she further acknowledges in her brief, the single-
       episode rule, which caps the total consecutive sentence for crimes “arising out of an episode of criminal
       conduct,” simply does not apply to violent crimes such as murder and Class B felony burglary. See IND.
       CODE § 35-50-1-2. Moore’s argument therefore fails.

       Court of Appeals of Indiana | Memorandum Decision 69A05-1601-CR-68 | February 15, 2017         Page 12 of 15
       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 of

       persuading this Court that her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate

       turns on the “culpability of the defendant, the severity of the crime, the damage

       done to others, and myriad other factors that come to light in a given case.”

       Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).


[20]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

       Here, Moore was convicted of murder, Class B felony burglary, and Class B

       felony conspiracy to commit burglary. The sentencing range for murder is from

       forty-five (45) to sixty-five (65) years, with an advisory sentence of fifty-five (55)

       years. I.C. § 35-50-2-3. The trial court sentenced Moore to sixty-five (65) years,

       which is the maximum sentence. In addition, the sentencing range for a Class

       B felony is from six (6) to twenty (20) years, with an advisory sentence of ten

       (10) years. I.C. § 35-50-2-5. The trial court sentenced Moore to twenty years for

       both Class B felony convictions, which is also the maximum sentence. The trial

       court then ordered the sentences to run consecutively, for a total sentence of

       one hundred and five (105) years.


[21]   With regard to the nature of the offenses, twenty-two-year-old Moore drove a

       group of young men, including three fifteen-year-olds, from Ohio to Indiana for

       Court of Appeals of Indiana | Memorandum Decision 69A05-1601-CR-68 | February 15, 2017   Page 13 of 15
       the sole purpose of committing crimes. The first stop was Jackson’s home,

       where D.H. and S.N. busted down the door, threatened to shoot Jackson’s

       mother, and robbed Jackson and his girlfriend at gunpoint. The next stop was

       sixty-eight-year-old Hershman’s home. Moore, wearing a glove, entered the

       home armed with a .40 caliber handgun loaded with hollow point bullets and

       headed directly to the bedroom, where she found Hershman in her pajamas.

       After a brief verbal exchange, Moore shot Hershman in the throat and then left

       her to die.


[22]   With regard to her character, we note that Moore appeared to have planned to

       kill someone on the night of the offenses. Moore asked her mother if she would

       “tell on” Moore if Moore told her she had killed someone and then drove three

       fifteen-year-old young men across state lines to commit crimes. (Tr. 2404).

       After the young men had committed the first crime and given Moore the money

       they had stolen from Jackson, they were ready to return home. Moore,

       however, was not satisfied. She went into Hershman’s home armed with a gun,

       walked directly to Hershman’s bedroom, and murdered her. Moore then told

       the young men that she thought she would have had a little more remorse for

       killing someone but that she did not. After being arrested, and while

       incarcerated at the county jail, Moore received thirteen write-up reports for bad

       behavior. Two of these incidents led to charges for battery and intimidation.

       Clearly, Moore has no respect for the law.




       Court of Appeals of Indiana | Memorandum Decision 69A05-1601-CR-68 | February 15, 2017   Page 14 of 15
[23]   Based on the nature of the offenses and her character, Moore has failed to

       persuade this Court that her one-hundred-and five (105) year sentence is

       inappropriate.


[24]   Affirmed.


       Bradford, J., and Altice, J., concur.




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