MEMORANDUM DECISION
                                                                           May 22 2015, 5:35 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 R. Fisher                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Leonard Bond,                                            May 22, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1412-CR-554
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Marc Rothenberg,
State of Indiana,                                        Judge.
Appellee-Plaintiff                                       Cause No. 49G02-1304-MR-25924




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015          Page 1 of 9
[1]   Leonard Bond appeals his conviction and sentence for Murder,1 a felony. He

      argues that the State failed to present sufficient evidence to rebut his claim of

      self-defense and that his sentence is inappropriate in light of the nature of the

      offense and his character. Finding no error, we affirm.


                                                    Facts
[2]   At approximately 5:00 am on April 20, 2013, Bond and his girlfriend, Louisa

      Tranbarger, went to a Denny’s restaurant in Marion County. Bond had a gun

      visibly protruding from his right pocket. Several of the other patrons at

      Denny’s were concerned about the gun and asked a member of the wait staff if

      it was legal for a person to bring a gun into the restaurant.


[3]   Bond and Tranbarger ordered drinks and then walked to the crane machine

      near the entrance of the Denny’s. At approximately 5:30 am, Mario Wilson,

      his fiancée, Karen Dunbar, Annette Smith, and Carl Smith arrived at the

      Denny’s. When they entered the restaurant and passed Bond and Tranbarger,

      Bond said “look at [the] old people, what just dragged in at night when they get

      old.” State’s Ex. 4. The four ignored this statement and continued to their

      table.


[4]   The group was seated at a window table close to the entrance. Sometime after

      they had been seated, Bond and Tranbarger sat down at a booth directly behind




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015   Page 2 of 9
      them. Bond again began making comments about how old the group was. At

      that point, Wilson and Dunbar turned around to ask Bond if he had a problem

      with them. Bond stated that he did not, but continued to talk about old people

      being out at night. The other patrons in the restaurant heard raised voices and

      became uncomfortable, as they knew that Bond was carrying a gun.


[5]   At some point, Bond got up because he was upset and went to the bathroom.

      As he passed Wilson’s table, Bond lifted up his shirt in a way that allowed

      others to see the gun he was carrying. When Bond returned, he and Wilson

      began to argue again, this time more loudly. This made other patrons so

      nervous that they decided to leave.


[6]   Eventually, Bond stood up and tossed money for his meal on the table. He then

      turned around, flipped off Wilson with his middle finger, and told Wilson they

      could take the fight outside. Wilson ignored this and continued talking to the

      group at his table. Bond and Tranbarger walked outside of the Denny’s, but

      they did not leave. Instead, Bond began banging on the window next to

      Wilson’s table with his fist and then tapped on it with his gun. Bond motioned

      to Wilson that he should come outside.


[7]   Tranbarger told Bond they should leave, but Bond walked back towards the

      Denny’s. Wilson stood up and yelled, “do not let that man back in.” Id.

      Wilson then walked towards the entrance. Wilson then went outside, and

      Bond shot him three times. Wilson was unarmed.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015   Page 3 of 9
[8]    Dunbar and Carl Smith then went outside, where they saw Wilson hanging

       from Bond’s arm in an attempt to stay upright. Dunbar and Carl Smith

       wrestled Bond to the ground, where they kept him until the police came and

       handcuffed him.


[9]    Wilson was transported to the hospital, where he died as a result of his gunshot

       wounds. One bullet had fractured his left cheek and lacerated the right carotid

       artery, another struck his chin, and a third hit his right shoulder and lacerated

       the right brachial artery. The autopsy showed that Bond was more than three

       feet away from Wilson when he shot him. Any of the three shots would have

       been fatal.


[10]   On April 22, 2013, the State charged Bond with murder, a felony, and carrying

       a handgun without a license, a class A misdemeanor. In addition, the State

       alleged that Bond’s sentence should be enhanced because he used a firearm in

       the commission of a felony. On June 27, 2013, Bond filed a notice of

       affirmative defense, and the jury was given an instruction on self-defense at

       trial. On June 4, 2014, Bond pleaded guilty to carrying a handgun without a

       license.


[11]   Bond’s three-day jury trial commenced on September 15, 2014. At trial, the

       State presented the testimony of Dunbar, Carl Smith, and Annette Smith, as

       well as the testimony of three restaurant patrons and a waitress who were

       present during the shooting. Bond testified that he shot Wilson in self-defense

       because Wilson kept “coming directly at” him after he told him to stop. Tr. p.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015   Page 4 of 9
       290. However, Bond also testified that he was not sure if Wilson was armed

       and admitted that Wilson had not threatened him or physically touched him

       before he shot him. Tranbarger also testified that Wilson had not threatened or

       touched Bond before Bond shot him and that Wilson was shot almost as soon

       as he walked out of the door of the restaurant.


[12]   The jury found Bond guilty of murder. On September 17, 2014, the trial court

       sentenced Bond to three hundred and sixty-five days for the carrying a handgun

       without a license conviction. On November 5, 2014, the trial court sentenced

       Bond to fifty-eight years for the murder conviction. The sentences were ordered

       to run concurrently. Bond now appeals.


                                    Discussion and Decision
                                I. Sufficiency of the Evidence
[13]   Bond first argues that there was insufficient evidence to support his conviction

       for murder because the State failed to disprove his claim of self-defense. When

       an appellant challenges the sufficiency of the evidence rebuting a claim of self-

       defense, we apply the same standard of review as that applied to sufficiency of

       the evidence claims generally. McCullough v. State, 985 N.E.2d 1135, 1138 (Ind.

       Ct. App. 2013). We neither reweigh the evidence nor judge the credibility of

       the witnesses. Id. at 1139. We will not disturb the verdict if there is sufficient

       evidence of probative value to support the trier of fact's conclusion. Id. We will

       reverse only if we determine that no reasonable person could find that the State



       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015   Page 5 of 9
       presented sufficient evidence to negate self-defense beyond a reasonable doubt.

       Id. at 1138.


[14]   Indiana Code section 35-41-3-2 provides that “[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 is not justified in using force if “the person has

       entered into combat with another person or is the initial aggressor unless the

       person withdraws from the encounter and communicates to the other person

       the intent to do so and the other person nevertheless continues or threatens to

       continue unlawful action.” I.C. § 35-41-3-2(g)(3). In addition, a defendant who

       raises a claim of self-defense is required to show three things: (1) he was in a

       place where he had a right to be; (2) he acted without fault; and (3) he had a

       reasonable fear of death or serious bodily harm. Id. The State then bears the

       burden of disproving at least one of these elements beyond a reasonable doubt.

       Id. “The State may meet this burden by rebutting the defense directly, by

       affirmatively showing the person did not act in self-defense, or by relying upon

       the sufficiency of its evidence in chief.” Id. Whether the State has met its

       burden is a question of fact. Id.


[15]   Bond claims that the State has failed to disprove any of the above three

       elements beyond a reasonable doubt. He claims that the evidence showed he

       acted in self-defense because the waitress on duty, Shontel Johnson, testified

       that Wilson walked out of the entrance of the Denny’s towards Bond.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015   Page 6 of 9
[16]   However, Bond mischaracterizes the evidence. Dunbar testified that Bond was

       provoking Wilson from the moment they entered the Denny’s, making

       comments about “old people” out at night. Tr. p. 19-22. A Denny’s patron,

       Georgette Torres, testified that after the two men had argued loudly, Bond

       walked past Wilson and his table and shifted his pants to reveal his gun. Id. p.

       70. She also testified that Bond flipped off Wilson with his middle finger and

       said they could take the argument outside. Id. at 71. The evidence also showed

       that, when Wilson did not respond to his invitation to come outside, Bond

       returned to provoke Wilson by tapping on the window next to his booth, first

       with his hand and then with his gun. Tr. p. 73-74. The evidence further

       showed that when Wilson still did not respond, Bond moved toward the front

       door of the Denny’s. Id. at 24. The jury heard testimony that it was at that

       point that Wilson yelled “do not let that man back in,” and headed towards the

       entrance. Id. at 25.


[17]   Furthermore, although Bond argued that he shot Wilson because he would not

       stop coming towards him, both Dunbar and Tranbarger testified that Wilson

       had barely exited the Denny’s before he was shot. Id. at 25, 315. It is clear

       from the above evidence that Bond had several opportunities to withdraw from

       any encounter, but chose instead to instigate a confrontation. See McEwen v.

       State, 695 N.E.2d 79, 90 (Ind. 1998) (evidence that a defendant was the initial

       aggressor and a willing participant in the violence can negate a claim of self-

       defense). Therefore, a reasonable jury could determine that Bond did not act in

       self-defense. Bond’s request that we reverse his conviction based on Johnson’s


       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015   Page 7 of 9
       testimony is a request for this court to reweigh the evidence and judge the

       credibility of witnesses, a request we decline.


                                             II. Sentencing
[18]   Bond next argues that his sentence is inappropriate in light of the nature of the

       offense and his character. On appeal, this Court “may revise a sentence

       authorized by statute 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.” Ind. Appellate Rule 7(B). However, this

       Court does not substitute its judgment for that of the trial court. Foster v. State,

       795 N.E.2d 1078, 1092 (Ind. Ct. App. 2003). Under Appellate Rule 7(B), the

       question is not whether it is more appropriate to impose a different sentence

       upon the defendant, but whether the defendant’s sentence is inappropriate.

       Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). The defendant

       bears the burden of persuading this Court that the sentence he received is

       inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[19]   Regarding the nature of the offense, Bond instigated the confrontation with

       Wilson. He went into a Denny’s displaying a gun he was not licensed to carry.

       While armed with this gun, Bond provoked an argument with Wilson. He told

       Wilson that he wanted to take their altercation outside. Bond then went

       outside the Denny’s, where he had an opportunity to walk away, but instead he

       chose to tap on the window with his fist and his gun. When that did not get

       Wilson to come outside, he went back inside the Denny’s entrance. When


       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015   Page 8 of 9
       Wilson left the Denny’s, he was shot almost as soon as he walked out of the

       entrance. Wilson was shot three times, from at least three feet away, and any of

       the three shots would have been fatal. We do not find that Bond’s sentence was

       inappropriate in light of the nature of his offense.


[20]   In considering Bond’s character, we note that Bond does have a criminal

       history. He has two prior felony convictions for receiving stolen property and

       theft. In addition, Bond was on probation at the time he committed the offense

       in the instant case. It is clear that Bond has not learned from his past

       experiences with the criminal justice system. The crime in the instant case is an

       escalation in severity from his past crimes, and it is clear that lenient sentences

       have not caused him to reconsider his behavior. We do not find that Bond’s

       sentence was inappropriate in light of his character.


[21]   The judgment of the trial court is affirmed.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015   Page 9 of 9
