MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jul 02 2020, 9:13 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
Thomas C. Allen                                           Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Antoine L. Kelley Jr.,                                    July 2, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2383
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Frances C. Gull,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          02D05-1904-MR-2



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020                      Page 1 of 9
[1]   Antoine L. Kelley Jr. appeals his conviction of murder. 1 He raises two issues

      on appeal, which we revise and restate as: (1) whether the trial court abused its

      discretion when it refused to instruct the jury regarding the lesser-included

      offense of Level 5 felony reckless homicide, 2 and (2) whether the State

      presented sufficient evidence to support Kelley’s murder conviction. We affirm.



                                   Facts and Procedural History
[2]   In late March 2019, Christopher Ellis, Alfonso Rogers, Jacob Reed, and

      Darrius McMorris decided to travel from Chicago to Fort Wayne in order to

      visit Kelley and “to make some money[.]” (Tr. Vol. II at 158.) The five had

      grown up in the same neighborhood in Chicago and were childhood friends.

      On Sunday March 24, 2019, Kelley went to Chicago and drove the four others

      to Fort Wayne. Kelley was in the process of moving houses at the time, so his

      four friends helped him move on Wednesday and Thursday. Starting on

      Thursday, Ellis noticed “there was something wrong with [Kelley].” (Id. at

      162.) Kelley acted “paranoid” and “nervous.” (Id. at 189.) Kelley paced the

      floor, and he said people were out to get him and the police were watching him.

      However, he did not elaborate when his friends asked him why he was anxious.




      1
          Ind. Code § 35-42-1-1.
      2
          Ind. Code § 35-42-1-5.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020   Page 2 of 9
[3]   On Sunday evening, March 31st, Kelley left his house to socialize with some of

      his friends from Fort Wayne, while his four friends from Chicago stayed at the

      house. They eventually fell asleep. Reed was the first of the four to wake on

      Monday, April 1, 2019. Reed was sitting in the kitchen when he noticed Kelley

      pacing back and forth. Ellis, Rogers, and McMorris were asleep in the nearby

      living room. Kelley stated that he needed McMorris to take him to the grocery

      store. Reed offered to take Kelley to the store, but Kelley insisted that

      McMorris take him. McMorris woke up and agreed to take Kelley to the store.

      McMorris said he first wanted to wash his face and brush his teeth. While

      McMorris was in the bathroom, Kelley walked to the bathroom door and fired

      multiple shots from a gun at McMorris. Kelley and McMorris did not say

      anything to each other before Kelley started shooting. One bullet struck

      McMorris in the back, and three other bullets hit him in the side. Ellis and

      Rogers watched as Kelley then backed out of the house with his handgun

      pointed at them and ran away. Reed left the house when Kelley began firing.


[4]   After Kelley left the house, Ellis, Rogers, and Reed rushed to a nearby gas

      station. They called the police, and they decided to leave Fort Wayne because

      they were worried Kelley might also harm them. The three took a Greyhound

      bus back to Chicago. Officers obtained a search warrant to search the house

      and found McMorris dead at the scene. Kelley left Fort Wayne after the

      shooting and drove to Tennessee where his girlfriend resided. He disposed of

      his gun somewhere along the highway.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020   Page 3 of 9
[5]   On April 10, 2019, the State charged Kelley with murder. The State also

      alleged that Kelley used a firearm in the commission of the offense, making him

      eligible for an additional penalty pursuant to Indiana Code section 35-50-2-11.

      Officers arrested Kelley in Tennessee and extradited him to Indiana. The court

      held a jury trial from August 13 to August 15, 2019. Kelley took the stand in

      his own defense at trial. He testified there were two guns inside the house at the

      time, and McMorris reached into his sweatshirt for something that Kelley

      believed was the second gun before Kelley shot McMorris. Kelley also testified

      that he had begun to suspect his friends were plotting to rob him because they

      would whisper amongst themselves and repeatedly asked him where he stored

      his money. Kelley asked the trial court to instruct the jury on the lesser-

      included offense of reckless homicide. However, the trial court refused the

      proposed instruction on the ground that a serious evidentiary dispute did not

      exist. The jury returned a guilty verdict on the charge of murder and found

      beyond a reasonable doubt that Kelley used a firearm in the commission of the

      offense. The trial court sentenced Kelley to a term of sixty years in the Indiana

      Department of Correction with ten years added to the sentence because of the

      firearm enhancement, for an aggregate term of seventy years.



                                 Discussion and Decision
                              1. Reckless Homicide Instruction
[6]   Kelley argues the trial court abused its discretion by not instructing the jury

      regarding the lesser-included offense of reckless homicide. We review a trial

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020   Page 4 of 9
court’s decision to give or deny a proposed jury instruction for an abuse of

discretion. Dixson v. State, 22 N.E.3d 836, 839 (Ind. Ct. App. 2014), trans.

denied. “A decision is an abuse of discretion when it is clearly against the logic

and effect of the facts and circumstances.” Garner v. State, 59 N.E.3d 355, 358

(Ind. Ct. App. 2016) (internal quotation marks omitted). When a party asks for

the court to issue an instruction regarding a lesser included offense, the court

evaluates the appropriateness of the instruction using a three-part test. Watts v.

State, 885 N.E.2d 1228, 1231 (Ind. 2008). First,


        the court must compare the statute defining the crime charged
        and the statute defining the alleged lesser-included offense. If the
        alleged lesser-included offense may be established by proof of all
        of the same or proof of less than all of the same material elements
        to the crime, or if the only difference between the two statutes is
        that the alleged lesser-included offense requires proof of a lesser
        culpability, then the alleged lesser-included offense is inherently
        included in the crime charged.


Id. Second, if the court determines the proposed lesser-included offense is not

inherently included in the charged crime, the court looks to the charging

information to see if all the statutory elements of the proposed lesser-included

offense are alleged in the charging information. Id. If either the first or second

parts of the test are satisfied, then


        the trial court must examine the evidence presented by each party
        and determine whether there is a serious evidentiary dispute over
        the element or elements that distinguish the crime charged and
        the lesser-included offense. If it would be possible for a jury to
        find that the lesser, but not the greater, offense had been

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020   Page 5 of 9
              committed, then the trial court must instruct the jury on both
              offenses.


      Id. at 1232 (emphasis in original).


[7]   Indiana Code section 35-42-1-1 defines murder as “knowingly or intentionally

      [killing] another human being[.]” Indiana Code section 35-42-1-5 provides, “A

      person who recklessly kills another human being commits reckless homicide, a

      Level 5 felony.” The only difference between murder and reckless homicide is

      the level of culpability. Murder requires the perpetrator to act knowingly or

      intentionally, whereas reckless homicide requires only that the perpetrator act

      recklessly. Consequently, reckless homicide is an inherently lesser-included

      offense of murder. McDowell v. State, 102 N.E.3d 924, 931 (Ind. Ct. App. 2018),

      trans. denied.


[8]   It is reversible error for a trial court to not give an instruction on an inherently

      lesser-included offense if there is a serious evidentiary dispute regarding the

      perpetrator’s culpability. Higgins v. State, 783 N.E.2d 1180, 1187 (Ind. Ct. App.

      2003), trans. denied. However, a trial court should not give such an instruction if

      there is no serious evidentiary dispute. Id. Kelley argues some evidence

      supported the theory that he acted recklessly rather than knowingly or

      intentionally because Kelley should have verified McMorris had a gun before

      Kelley shot McMorris. Kelley also contends McMorris’ large physical size,

      combined with Kelley’s fear that his friends were plotting to rob him, made him

      “suspicious and hypervigilant.” (Appellant’s Br. at 18.)


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020   Page 6 of 9
[9]    A defendant who fires a gun at another person at close range cannot do so

       without knowing his action is “highly probable to result in death.” Sanders v.

       State, 704 N.E.2d 119, 122-23 (Ind. 1999). It is not disputed that Kelley shot

       McMorris four times, at close range, and in an enclosed space. The question

       presented to the jury was not whether Kelley intentionally fired his gun at

       McMorris, but whether Kelley did so in self-defense. Therefore, the trial court

       did not abuse its discretion in refusing Kelley’s proposed jury instruction. See

       Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013) (holding trial court

       did not abuse discretion in refusing proposed jury instruction on a lesser

       included offense of reckless homicide because there was not a serious

       evidentiary dispute about mens rea).


                                  2. Sufficiency of the Evidence
[10]   Kelley also asserts the State did not present sufficient evidence to rebut his self-

       defense claim. As our Indiana Supreme Court has explained:


               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. We neither
               reweigh the evidence nor judge the credibility of witnesses. If
               there is sufficient evidence of probative value to support the
               conclusion of the trier of fact, then the verdict will not be
               disturbed.


       Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020   Page 7 of 9
[11]   A valid claim of self-defense is a legal justification for an otherwise criminal act.

       Id. at 800. Indiana Code section 35-41-3-2 (2013) 3 states that “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.”

       “To prevail on a claim of self-defense, 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.” Quinn v. State, 126 N.E.3d 924, 927 (Ind. Ct. App. 2019).

       If a defendant asserts a claim of self-defense, then the State bears the burden of

       negating at least one of the necessary elements. Id. The jury is tasked with

       deciding whether the State met its burden. Id.


[12]   The State presented evidence that Kelley instigated the violence and did not

       reasonably fear for his life. Ellis, Rogers, and Reed testified that they did not

       observe any argument or altercation between Kelley and McMorris before

       Kelley started firing. Kelley fired his weapon multiple times and shot

       McMorris in the back. See Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App.

       2007) (“Firing multiple shots undercuts a claim of self-defense.”), trans. denied.


[13]   Further, it stands to reason that if Kelley truly believed his friends were trying

       to rob him, he would have reported the shooting to the police. However, he did



       3
        This statute was amended effective April 26, 2019. However, the amended language is immaterial to the
       case at bar.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020                  Page 8 of 9
       not do so. He left Indiana and disposed of his gun. See Wilcoxson v. State, 132

       N.E.3d 27, 31 (Ind. Ct. App. 2019) (noting “an attempt to avoid arrest is

       evidence of a guilty conscience”), trans. denied. Therefore, the State presented

       sufficient evidence for a reasonable juror to conclude Kelley did not act in self-

       defense. See Quinn, 126 N.E.3d at 927 (holding State presented sufficient

       evidence to negate self-defense claim).



                                               Conclusion
[14]   The trial court did not abuse its discretion in refusing to instruct the jury

       regarding the lesser included offense of reckless homicide because there was no

       serious evidentiary dispute regarding Kelley’s level of culpability. Further, the

       State presented sufficient evidence to negate Kelley’s self-defense claim.

       Therefore, we affirm Kelley’s conviction of murder.


[15]   Affirmed.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020   Page 9 of 9
