Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                           FILED
any court except for the purpose of                          Jul 03 2012, 9:38 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

VALERIE K. BOOTS                                   GREGORY F. ZOELLER
Marion County Public Defender                      Attorney General of Indiana
Indianapolis, Indiana
                                                   ERIC P. BABBS
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DARRYL SHEPHERD,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
              vs.                                  )      No. 49A05-1111-CR-600
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Grant W. Hawkins, Judge
                            Cause No. 49G05-0911-MR-97663



                                          July 3, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Darryl Shepherd appeals his conviction for possession of a firearm by a serious

violent felon, a Class B felony, and his sentence. Shepherd raises three issues for our

review:

       1.     Whether the State presented sufficient evidence to disprove his
              defense of self-defense;

       2.     Whether the trial court abused its discretion when it sentenced him;
              and

       3.     Whether his sentence is inappropriate in light of the nature of the
              offense and his character.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       In 1991, Shepherd was convicted of two counts of Class C felony battery. In

1993, he was convicted of dealing in cocaine, as a Class B felony. Under Indiana law,

each of these convictions made Shepherd a serious violent felon, and he was prohibited

from carrying a firearm. Ind. Code § 35-47-4-5.

       In 2009, Shepherd owned and worked at an automobile body shop in Indianapolis.

He rented space at the shop to Gary Couch. On November 25, Shepherd approached

Couch about Couch’s overdue rent payment. Couch responded aggressively, uttering

racial slurs to Shepherd and threatening to kill him.

       In response to Couch’s aggression, Shepherd removed a .38 caliber revolver from

his shirt and shot Couch in the leg. This prompted witnesses to call 9-1-1. Shepherd then

attempted to leave in his car, but Couch kicked the rear door of Shepherd’s car, which

inspired Shepherd to turn his car around and drive it into Couch, knocking him down.
                                             2
Couch got up and tried to access Shepherd through the driver’s door while Couch’s son,

who was nearby, kicked in the rear driver’s side window. Shepherd then shot Couch

three times, shot Couch’s son once, and left the scene. Couch died before emergency

personnel arrived.

      Shepherd turned himself in to authorities the next day. After waiving his rights,

Shepherd thrice admitted that the firearm he had used was his. On November 30, the

State charged Shepherd with murder, a felony; battery, as a Class C felony; and unlawful

possession of a firearm by a serious violent felon, a Class B felony. The State also

alleged Shepherd to be an habitual offender.

      At the ensuing bench trial, after the State rested Shepherd moved for involuntary

dismissal of each of the State’s charges on the grounds that the evidence established his

defense of self-defense. The trial court granted Shepherd’s motion with respect to the

murder and battery allegations but denied the motion with respect to the unlawful

possession of a firearm charge. In particular, the court denied Shepherd’s motion on that

charge because Shepherd “had the gun on his person before he knew he’d need it, and

that was inside the garage before . . . a threat allowing the use of deadly force had been

made.” Transcript at 652.

      Shepherd did not present any evidence on his behalf following the court’s ruling

on his motion for involuntary dismissal.           The court then found Shepherd guilty of

unlawful possession of a firearm by a serious violent felon. The court further found that

Shepherd was an habitual offender.




                                               3
       The court held Shepherd’s sentencing hearing on October 26, 2011. After hearing

the parties’ arguments, the court stated as follows:

       The defendant’s lifestyle changed since the 90[s], the fact that he
       surrendered and cooperated with authorities, his poor health and the fact
       that he was in his own mind acting in self[-]defense through a lot of this are
       significant mitigating factors. The fact that he was on probation, he has
       two prior probation violations, one prior felony conviction are aggravating
       factors. But the biggest aggravating factor is as a result of his violation of
       this law someone died. If he hadn’t had the gun, Mr. Couch doesn’t die. If
       he would have called 9-1-1 instead of pulling a gun, Mr. Couch doesn’t die.
       I can understand that there are sentiments in some corners that if you have a
       problem you carry a gun. Mr. Shepherd wasn’t allowed to do that. He had
       to call 9-1-1 instead. The fact that someone died is the overriding
       aggravating factor.

Id. at 702-03. The court then concluded that the aggravators outweighed the mitigators

and sentenced Shepherd to fifteen years on the Class B felony conviction. The court

enhanced that sentence by ten years based on the habitual offender finding. This appeal

ensued.

                            DISCUSSION AND DECISION

                         Issue One: Sufficiency of the Evidence

       Shepherd first contends that the State failed to disprove his defense of self-defense

with respect to the firearm charge. As our supreme court has explained:

       A valid claim of defense of oneself or another person is legal justification
       for an otherwise criminal act. Ind. Code § 35-41-3-2(a); Wallace v. State,
       725 N.E.2d 837, 840 (Ind. 2000). In order to prevail on such a claim, the
       defendant must show that he: (1) was in a place where he had a right to be;
       (2) did not provoke, instigate, or participate willingly in the violence; and
       (3) had a reasonable fear of death or great bodily harm. McEwen v. State,
       695 N.E.2d 79, 90 (Ind. 1998). When a claim of self-defense is raised and
       finds support in the evidence, the State has the burden of negating at least
       one of the necessary elements. Id. If a defendant is convicted despite his
       claim of self-defense, this Court will reverse only if no reasonable person
       could say that self-defense was negated by the State beyond a reasonable
                                             4
       doubt. Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999). . . . The standard
       of review for a challenge to the sufficiency of evidence to rebut a claim of
       self-defense is the same as the standard for any sufficiency of the evidence
       claim. Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999). We neither
       reweigh the evidence nor judge the credibility of witnesses. Id. If there is
       sufficient evidence of probative value to support the conclusion of the trier
       of fact, then the verdict will not be disturbed. Id.

Wilson v. State, 770 N.E.2d 799, 800-01 (Ind. 2002).

       We have discussed how the defense of self-defense applies to a charge of unlawful

possession of a firearm by a serious violent felon as follows:

       [W]e do not believe that the Indiana Legislature, in prohibiting the
       possession of a firearm by a serious violent felon, intended to preclude the
       assertion of self-defense. . . .

               Other courts . . . have recognized self-defense as a viable defense [on
       similar charges], provided that the particular circumstances warranted such
       defense. In People v. King, 22 Cal. 3d 12, 148 Cal. Rptr. 409, 414, 582
       P.2d 1000, 1005 (1978), for example, the court held that the legislature, in
       prohibiting the possession of a concealable firearm by a person previously
       convicted of a felony, did not intend to preclude the assertion of self-
       defense and closely related defenses to a charge of violating the statute.
       There, the defendant had been attending a party at a friend’s house when
       the house came under attack from some uninvited and intoxicated
       individuals. Id. at 411, 148 Cal. Rptr. 409, 582 P.2d at 1002. During the
       melee, the defendant was given a small pistol from another guest to use in
       protecting the house and the occupants. He fired the gun over the heads of
       the attackers, slightly wounding one and frightening away the remainder.
       At trial, the judge refused to give an instruction that self-defense would be a
       defense to the weapon-possession charge and the defendant appealed. On
       review, the King Court determined that the prohibition of a felon
       possessing a firearm was not intended to affect a felon’s right to use a
       concealable firearm in self-defense, but was intended only to prohibit
       members of the affected classes from arming themselves with concealable
       firearms or having such weapons in their custody or control in
       circumstances other than those in which the right to use deadly force in
       self-defense exists or reasonably appears to exist[]. Id. at 416, 148 Cal.
       Rptr. 409, 582 P.2d at 1007. Thus, continued the court, when a felon, like
       the defendant in question, is in imminent peril of great bodily harm or
       reasonably believes himself or others to be in such danger, and without
       preconceived design on his part a firearm is made available to him, his
                                             5
        temporary possession of that weapon for a period no longer than that in
        which the necessity or apparent necessity to use it in self-defense continued
        would not violate the statutory prohibition against possession of a
        concealed firearm by a felon. Id.

                                            ***

               Here . . . , there is a legitimate question regarding Harmon’s claim of
        self-defense. Harmon’s proffered evidence reveals, for example, that he
        broke into the locked gun case and obtained Theresa’s handgun only after
        he saw John retrieve a shotgun from John’s truck. These events occurred in
        the middle of a heated altercation between Harmon and Theresa, on the one
        hand, and John, Audrey, and Palm, on the other. According to Harmon,
        when he first took possession of the firearm, he was outnumbered,
        concerned about John’s intention with the shotgun, and believed himself
        and Theresa to be in imminent peril of great bodily harm. Further,
        Harmon’s possession of the firearm was temporary and lasted only for the
        period of time necessary to abate the danger. Under these circumstances,
        we conclude . . . that Indiana’s prohibition against a felon possessing a
        firearm was not intended to affect his or her right to use a firearm in self-
        defense, but was intended only to prohibit members of the affected classes
        from arming themselves with firearms or having such weapons in their
        custody or control in circumstances other than those in which the right to
        use deadly force in self-defense exists or reasonably appears to exist[].

              Because the evidence legitimately tends to support Harmon’s self-
        defense theory, it is admissible and the jury should have had the
        opportunity to consider the circumstances as they appeared to Harmon. . . .

Harmon v. State, 849 N.E.2d 726, 732-34 (Ind. Ct. App. 2006) (emphasis added; some

citations omitted).

        Shepherd moved for involuntary dismissal of the firearm charge on the basis that

the State’s evidence demonstrated his possession of the firearm was in self-defense. The

trial court denied the motion after concluding that the State’s evidence showed that

Shepherd possessed the firearm before he had a reasonable fear of death or great bodily

harm.



                                              6
        On appeal, Shepherd asserts that the trial court’s conclusion is not supported by

the evidence. Shepherd notes that there was a brief delay early in his confrontation with

Couch before Shepherd shot Couch in the leg.                     During this delay, Couch exited

Shepherd’s shop. As Shepherd states, “it was unclear exactly when he took possession of

the gun” because he testified that he only grabbed the gun after Couch began acting

aggressively. Appellant’s Br. at 12. It appears that Shepherd is suggesting that, during

this brief delay, he first possessed the firearm in anticipation of Couch returning and

Shepherd needing to defend himself.

        Shepherd’s reading of the record is contrary to our standard of review. Again, our

standard of review here is the same as our standard of review for any sufficiency of the

evidence challenge: we consider only the evidence most favorable to the judgment.

Wilson, 770 N.E.2d at 801; Sanders, 704 N.E.2d at 123. Indeed, Shepherd’s argument

here both ignores the fact that the gun was his1 and is based on statements he made to the

trial court at sentencing, which were well after he had rested his case at trial, the court

had declared him guilty of the charge, and the trial had ended. We will not entertain this

purported evidence now.

        In any event, the State’s evidence disproves Shepherd’s self-defense claim with

regard to the unlawful possession charge. As stated in Harmon, self-defense is available

to a charge of unlawful possession of a firearm only where such possession is “without

        1
           In a footnote in his reply brief, Shepherd makes the following cursory comment: “The State
claims that Shepherd calling the gun[] ‘my gun’ in his statement to police constituted an admission that he
owned the gun and had exclusive possession of it. This is an invalid conclusion.” Reply Br. at 3 n.3.
Shepherd’s commentary is unclear. But, insofar as Shepherd’s argument in his reply brief is that the State
improperly conflates gun ownership and gun possession (and insofar as Shepherd’s proposed distinction
has any merit), the State sufficiently demonstrated that Shepherd both owned and possessed the firearm in
question.
                                                    7
preconceived design on [the defendant’s] part [and the] firearm is made available to

him.”    849 N.E.2d at 733 (discussing King, 582 P.2d at 1007).         Neither of those

conditions occurred here. Rather, Shepherd admitted to police that the firearm was his

firearm. And two of the State’s witnesses each testified that they saw Shepherd remove

the firearm from inside his shirt after Couch became aggressive towards Shepherd.

Transcript at 110, 417. A reasonable conclusion from that evidence is that Shepherd

possessed the firearm before he had a reasonable fear of death or great bodily harm.

        Thus, Shepherd’s possession of the firearm was neither “without preconceived

design” nor because the firearm was “made available to him.” See Harmon, 849 N.E.2d

at 732-33. The State’s evidence demonstrates that the firearm was not in a lawful place

and then made available to Shepherd but, rather, unlawfully possessed by Shepherd prior

to his engagement with Couch. See id. at 732-34; see also Johnson v. State, 256 Ind. 497,

506-07, 269 N.E.2d 879, 884 (1971) (“Had the pistol been in a location which was

lawful, and the appellant obtained it from such position to defend himself, we might have

a legitimate question.”).

        Based on the State’s evidence, a reasonable person would say that the State

negated Shepherd’s self-defense claim beyond a reasonable doubt. See Wilson, 770

N.E.2d at 801. The State sufficiently demonstrated that Shepherd possessed the firearm

before he had a reasonable fear of death or great bodily harm. Shepherd’s argument to

the contrary on appeal—to the extent it is actually based on evidence presented at his

trial—simply amounts to a request for this court to reweigh the State’s evidence, which

we will not do. See id. We affirm his conviction.


                                            8
                               Issue Two: Improper Aggravator

        Shepherd next contends that Couch’s death was an improper aggravating factor for

the court to consider when sentencing him. Sentencing decisions rest within the sound

discretion of the trial court and are reviewed on appeal only for an abuse of discretion.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on

reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the decision is

clearly against the logic and effect of the facts and circumstances before the court, or the

reasonable, probable, and actual deductions to be drawn therefrom. Id.

        An abuse of discretion occurs if the decision is “clearly against the logic
        and effect of the facts and circumstances before the court, or the reasonable,
        probable, and actual deductions to be drawn therefrom.”

               One way in which a trial court may abuse its discretion is failing to
        enter a sentencing statement at all. Other examples include entering a
        sentencing statement that explains reasons for imposing a sentence—
        including a finding of aggravating and mitigating factors if any—but the
        record does not support the reasons, or the sentencing statement omits
        reasons that are clearly supported by the record and advanced for
        consideration, or the reasons given are improper as a matter of law. . . .

               [However, b]ecause the trial court no longer has any obligation to
        “weigh” aggravating and mitigating factors against each other when
        imposing a sentence, . . . a trial court can not now be said to have abused its
        discretion in failing to “properly weigh” such factors.

Id. at 490-91 (citations omitted).

        Shepherd’s argument here is that the trial court’s use of Couch’s death as an

aggravator impermissibly punishes Shepherd for a crime he did not commit, namely, the

alleged murder of Couch.2 Shepherd further asserts that, if he had not had the firearm to


        2
          We agree with the State that, insofar as Shepherd attempted to raise a double jeopardy or a due
process argument on appeal, he waived that argument for failing to support it with cogent reasoning. Ind.
Appellate Rule 46(A)(8)(a). And we note that, for the first time in his reply brief, Shepherd asserts that
                                                    9
defend himself, he might well have been the victim of Couch’s aggression. As such, he

continues, the trial court’s comment that “[i]f [Shepherd] hadn’t had the gun, Mr. Couch

doesn’t die” was “invalid.” Appellant’s Br. at 14; Transcript at 703.

        The trial court did not abuse its discretion in finding Couch’s death to be an

aggravating circumstance of Shepherd’s unlawful possession of the firearm. Shepherd

acknowledges that, under Indiana law, the trial court may consider the nature and

circumstances of an offense as a proper aggravator. See Appellant’s Br. at 13-14; see

e.g., McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001). Here, the evidence plainly

showed that Couch died as a result of Shepherd’s unlawful possession of the firearm.

Further, the trial court’s sentencing statement shows that the court was just as concerned

with what Shepherd did not do as it was with the end result of what he did do. As the

court stated, Shepherd could have called 9-1-1 at the outset of the confrontation. He did

not.3 The court’s analysis was not “clearly against the logic and effect of the facts and

circumstances” before it. Anglemyer, 868 N.E.2d at 490.

        Neither are we persuaded by Shepherd’s suggestion that enhancing his sentence

for his Class B felony to fifteen years—five years greater than the advisory sentence but

five years lower than the statutory maximum, see I.C. § 35-50-2-5—is equivalent to an

end-run around his acquittal on the State’s murder charge. This court has recognized that



the trial court improperly failed to consider that the victim induced the offense. Reply Br. at 7. A party
may not raise an argument for the first time in a reply brief, and this is also waived. See, e.g., Naville v.
Naville, 818 N.E.2d 552, 553 n.1 (Ind. Ct. App. 2004).
        3
           In a sentence at the end of his argument on this issue, Shepherd states that “[t]he court’s
suggestion that calling 9-1-1 was a viable alternative option . . . was not supported by the evidence.”
Appellant’s Br. at 14. As with his fleeting references to double jeopardy and due process, this one-
sentence, passing reference is not an argument supported by cogent reasoning. App. R. 46(A)(8)(a).
                                                     10
a victim’s death can be considered in sentencing even though the death formed part of

another charge for which the defendant was acquitted. See, e.g., Deloney v. State, 938

N.E.2d 724, 732 (Ind. Ct. App. 2010), trans. denied (holding that the defendant’s

acquittal on a murder charge “does not preclude the trial court from using the

circumstances of the [victim’s] death as an aggravating factor when determining his

sentence for the other two crimes”). And recognizing Couch’s death as an aggravator to

the unlawful possession of a firearm charge does not negate Shepherd’s self-defense

claim, as he suggests in his reply brief. See Reply Br. at 5-6. As described in Issue One,

the State sufficiently demonstrated that Shepherd unlawfully possessed the firearm before

his need for self-defense arose.

       In essence, Shepherd’s argument on this issue amounts to a request for this court

to discount the weight the trial court assigned to this valid aggravator, which we will not

do. Anglemyer, 868 N.E.2d at 490-91. The trial court did not abuse its discretion when

it considered Couch’s death as an aggravating circumstance of Shepherd’s unlawful

possession of the firearm.

                         Issue Three: Inappropriateness of Sentence

       Finally, Shepherd argues that his fifteen-year sentence for his Class B felony

conviction is inappropriate in light of the nature of the offense and his character. 4

Although a trial court may have acted within its lawful discretion in determining a

sentence, Article VII, Sections 4 and 6 of the Indiana Constitution “authorize[]

independent appellate review and revision of a sentence imposed by the trial court.”



       4
           Shepherd does not challenge his ten-year enhancement for being an habitual offender.
                                                   11
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This

appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of

a sentence under Appellate Rule 7(B) requires the appellant to demonstrate that his

sentence is inappropriate in light of the nature of his offense and his character. See Ind.

Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

assess the trial court’s recognition or non-recognition of aggravators and mitigators as an

initial guide to determining whether the sentence imposed was inappropriate. Gibson v.

State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a defendant must persuade

the appellate court that his or her sentence has met th[e] inappropriateness standard of

review.” Roush, 875 N.E.2d at 812 (alteration original).

       Moreover, “sentencing is principally a discretionary function in which the trial

court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial courts to tailor

an appropriate sentence to the circumstances presented. See id. at 1224. The principal

role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. Whether we

regard a sentence as inappropriate at the end of the day turns on “our sense of the

culpability of the defendant, the severity of the crime, the damage done to others, and

myriad other facts that come to light in a given case.” Id. at 1224.

       In support of a reduced sentence, Shepherd notes that his lifestyle has changed

since his felony convictions from the early 1990s; he surrendered and cooperated with

police in this case; he had a strong relationship with his son and grandchildren; that

“there was no indication . . . that he used the weapon for any purpose beyond self-


                                             12
defense”; and that he has serious health issues, such that even the minimum sentence of

six years, along with the habitual offender enhancement, “may well constitute a life

sentence.” Appellant’s Br. at 15-17.

       The trial court considered all of Shepherd’s concerns in the first instance, and we

cannot say that his fifteen-year sentence for his Class B felony is inappropriate.

Shepherd’s offense resulted in the death of one person and the injury of a another person.

He has an established criminal history, he has multiple probation violations, and he

committed the instant offense while on probation for a 2008 Class D felony conviction

for intimidation. In light of the nature of the offense and his character, we cannot say that

Shepherd’s sentence is such an outlier that we should exercise our discretion to reduce it.

Accordingly, we conclude that Shepherd’s sentence is not inappropriate.

                                        Conclusion

       In sum, the State presented sufficient evidence to rebut Shepherd’s claim of self-

defense on the charge that he unlawfully possessed a firearm. We further hold that the

trial court did not abuse its discretion when it sentenced Shepherd and that his sentence is

not inappropriate. As such, we affirm Shepherd’s conviction and sentence.

       Affirmed.

RILEY, J., and DARDEN, J., concur.




                                             13
