Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                    Sep 09 2014, 10:29 am
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:

CARA SCHAEFER WIENEKE                           GREGORY F. ZOELLER
Special Assistant to the                        Attorney General of Indiana
State Public Defender
Wieneke Law Office, LLC                         ELLEN H. MEILAENDER
Plainfield, Indiana                             Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

WILLIAM MALLORY,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 84A01-1312-CR-555
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE VIGO SUPERIOR COURT
                          The Honorable Michael J. Lewis, Judge
                            Cause No. 84D06-1208-MR-2828



                                    September 9, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          William Mallory was convicted of one count of Murder,1 a felony, two counts of

Attempted Murder,2 a class A felony, and one count of Carrying a Handgun Without a

License,3 a class A felony. At the close of trial, the trial court refused to instruct the jury

on self-defense. Mallory now appeals, claiming that there was sufficient evidence in the

record to entitle him to a jury instruction on self-defense. Mallory also argues that his

sentence was inappropriate in light of the nature of the offenses and his character.

Finding that the trial court did not abuse its discretion in refusing to instruct the jury on

self-defense and that Mallory’s sentence was not inappropriate, we affirm.

                                                  FACTS

          On October 23, 2012, Mallory went with some friends to a bar in Terre Haute.

While there, Mallory was confronted by Dante Pettus, who was upset about some

comments that Mallory had made to Pettus’s former girlfriend. The two men exchanged

a few words and then separated. Mallory and Pettus confronted each other two more

times while in the bar. The conversations were heated but did not result in violence.

          Shortly before the bar closed, Mallory went to his car and retrieved a loaded gun.

He stood outside, accompanied by his friend. Pettus and his friends came outside, and

another verbal confrontation between Mallory and Pettus ensued. Mallory drew his gun

and fired six or seven shots directly at Pettus, Dustin Kelly, and Terrance Trotter. Pettus

1
    Ind. Code § 35-42-1-1(1).
2
    I.C. § 35-42-1-1(1); Ind. Code § 35-41-5-1.
3
    Ind. Code § 35-47-2-1.

                                                    2
and Trotter were both shot as they were running away.                     Both men suffered life-

threatening injuries but survived. Kelly, who was initially shot in the chest and then shot

again as he lay on the ground, died.

         On October 24, 2013, a jury convicted Mallory of one count of murder, two counts

of attempted murder, and one count of carrying a handgun without a license. At the close

of trial, Mallory tendered a jury instruction on self-defense. The trial court refused to so

instruct the jury, finding that the evidence did not support the instruction. Mallory was

sentenced to fifty-five years for the murder conviction, thirty years and twenty-five years

for the two attempted murder convictions, and one year for the carrying a handgun

without a license conviction. The trial court ordered all sentences to run consecutively,

resulting in an aggregate sentence of 111 years. Mallory now appeals.

                                DISCUSSION AND DECISION

                               I. Jury Instruction on Self-defense

         First, Mallory argues that the trial court erred by denying his request for a jury

instruction on self-defense. We review a trial court’s refusal to give a tendered jury

instruction for an abuse of discretion. Wilson v. State, 4 N.E.3d 670, 675 (Ind. Ct. App.

2014).

         As a general rule, a defendant in a criminal case is entitled to have the jury

instructed on any theory of defense that has some foundation in the evidence. 4 Dayhuff v.


4
  The text of Mallory’s tendered instruction does not appear in the record before this Court. The reason
for its omission from the trial record is unknown. However, because we find that an instruction on self-
defense was not proper in this case, it is unnecessary to consider whether Mallory has waived the issue.
                                                   3
State, 545 N.E.2d 1100, 1102 (Ind. Ct. App. 1989). This rule applies even if the evidence

is weak or inconsistent. Id. To prevail on a claim of self-defense, a defendant must show

that he: (1) was in a place 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. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). A defendant is justified in

using deadly force only if he “reasonably believes that that force is necessary to prevent

serious bodily injury . . . .” I.C. § 35-41-3-2(c). The amount of force that the defendant

may use to protect himself must be proportionate to the urgency of the situation. Harmon

v. State, 849 N.E.2d 726, 730-31 (Ind. Ct. App. 2006). One who is assaulted in a manner

that does not appear to threaten great bodily harm may not purposely kill in self-defense.

Loyd v. State, 272 Ind. 404, 408, 398 N.E.2d 1260, 1265 (Ind. 1980).

       In this case, we must determine whether there is some evidence in the record that

would have made an instruction on self-defense proper. Mallory must first show that he

was in a place he had a right to be. Wilson, 770 N.E.2d at 800. Because it is not disputed

that Mallory had a right to be at the bar, we turn to the second prong of the test. A

defendant must show that he did not provoke, instigate, or participate willingly in the

violence in order to prevail on a claim of self-defense. Id. In other words, a defendant

must show that he acted without fault. White v. State, 699 N.E.2d 630, 635 (Ind. 1998).

       Mallory argues that there is evidence establishing that he acted without fault. We

cannot agree. The record shows that, before the final confrontation ensued, Mallory had

already left the bar and gotten into his vehicle. At that point, Mallory retrieved a gun and

                                             4
loaded it and waited at the scene for Pettus to exit the bar. Mallory notes that “when [he]

exited the bar before his friend, he told police that he was concerned for his friend’s

safety because he knew there would be a confrontation again in the parking lot. So he

armed himself with a weapon.”         Appellant’s Br. p. 12-13.      The evidence clearly

established that Mallory had ample opportunity to deescalate the conflict and make it

home safely.     Instead, Mallory chose to arm himself and lie in wait for another

confrontation.

       Although it is true that a defendant is entitled to a jury instruction that has some

foundation in the evidence, Mallory has not pointed us to any evidence in the record

indicating that he acted without fault. Mallory did not have to return to the parking lot

and escalate the situation. In other words, it was reasonable for the trial court to conclude

that Mallory was at fault for arming himself and waiting in the parking lot for a

confrontation to ensue.

       As to the third prong, Mallory points to no evidence which tends to show that he

had a reasonable fear of death or great bodily harm. Mallory notes: “It was not until

Pettus and one of his friends drew their arms back in a swinging motion to punch Mallory

that Mallory pulled out his weapon and shot them.” Appellant’s Br. p. 13. Mallory may

have been in apprehension of getting punched, but a punch is very unlikely to result in

death or great bodily harm. Even if Pettus were about to punch Mallory, these facts do

not give rise to a reasonable belief that deadly force was necessary to prevent serious

bodily injury.

                                             5
       Mallory has failed to point to any evidence in the record showing that he was not

at fault or that he had a reasonable fear of death or great bodily harm. He has thus failed

to show that there is a foundation in the evidence to support his claim of self-defense.

Consequently, the trial court did not abuse its discretion in refusing to instruct the jury on

self-defense.

                        II. Appropriateness of Mallory’s Sentence

       Mallory next argues that his 111-year sentence is inappropriate in light of the

nature of the offense and his character. Mallory received a fifty-five year sentence for his

murder conviction, which is the advisory term for murder. Ind. Code § 35-50-2-3.

Mallory was also convicted of two counts of attempted murder, which has a potential

sentence of twenty to fifty years, with the advisory term being thirty years. I.C. § 35-50-

2-4.   Mallory was sentenced to thirty years and twenty-five years for these two

convictions. Mallory was also sentenced to one year for carrying an unlicensed handgun.

       Indiana Appellate Rule 7(B) allows this Court to revise a sentence if, “after due

consideration of the trial court’s decision, the Court finds that the sentence is

inappropriate in light of the nature of the offense and the character of the offender.” We

give deference to the decision of the trial court, recognizing the special expertise of the

trial court in sentencing decisions. Taylor v. State, 891 N.E.2d 155, 162 (Ind. Ct. App.

2008). The question is not whether a different sentence would be more appropriate, but

rather, whether the defendant’s sentence is inappropriate. Steinberg v. State, 941 N.E.2d



                                              6
515, 535 (Ind. Ct. App. 2011). The defendant has the burden of persuading this Court

that the sentence is inappropriate. Steinberg, 941 N.E.2d at 535.

       As to the nature of the offenses, Mallory has killed one victim and inflicted serious

physical harm on two others. Mallory chose to escalate a situation that he could have

easily ended, and he chose to shoot a loaded gun when such force was clearly

unnecessary. Mallory continued to shoot his victims even as they were running away or

on the ground dying. We note that the imposition of consecutive sentences is appropriate

in cases involving multiple victims. Wright v. State, 818 N.E.2d 540, 551 (Ind. Ct. App.

2004). Additionally, we observe that the trial court has imposed sentences at or below

the advisory terms.

       As to his character, Mallory points out that this is his first criminal conviction and

that he is at a low risk of reoffending. Indeed, the trial court noted the fact that this was

Mallory’s first criminal conviction as a mitigating circumstance.         Sent. Hr. p. 38.

However, the trial court found that the aggravating circumstances outweighed the

mitigating circumstances. The trial court considered the fact that Mallory showed no

remorse throughout the trial as well as the manner in which Mallory killed his victim,

executing him as he lay on the ground dying. In the end, the trial court imposed the

advisory sentences for each offense, resulting in a 111-year sentence, significantly less

than the maximum 166-year sentence authorized by statute.

       In reviewing sentences, this Court’s principal role is to leaven the outliers, and not

to impose a different result that we believe to be more correct. Cardwell v. State, 895

                                             7
N.E.2d 1219, 1225 (Ind. 2008). We do not believe this sentence is an outlier. We find

that in light of the nature of Mallory’s offenses and his character, Mallory’s sentence was

not inappropriate.

       The judgment of the trial court is affirmed.

KIRSCH, J., and ROBB, J., concur.




                                             8
