MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Sep 20 2019, 9:56 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kevin Wild                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Eldridge Jerome Moore,                                   September 20, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-680
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara Cook
Appellee-Plaintiff.                                      Crawford, Judge
                                                         Trial Court Cause No.
                                                         49G01-1704-MR-13141



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019               Page 1 of 16
[1]   Eldridge Jerome Moore appeals his convictions for two counts of murder. He

      raises one issue which we revise and restate as whether the evidence is sufficient

      to support his convictions and negate his claim of self-defense. We affirm.


                                      Facts and Procedural History

[2]   On April 5, 2017, Moore lived with his uncle, Phillip McBrady, and Phillip’s

      wife, Helen. Brandon Miller would visit their house in Indianapolis daily.

      Transcript Volume II at 30, 36. At some point that evening or the early

      morning hours of April 6, Miller had a drink or two and wanted to talk to

      Phillip about a “job that he was doin’ for” a young man because Phillip had

      introduced them to each other. Id. at 38. Miller “just wanted to get a little

      more insight of . . . how the man worked as far as you know getting paid.” Id.

      Miller’s girlfriend, Tonya Peete, dropped him off near Phillip and Helen’s

      house, stated that she would return to pick him up, and went to purchase gas

      for her vehicle. At some point, Moore shot Miller and Phillip.


[3]   Meanwhile, Peete returned after “probably like about five minutes,” parked in

      the driveway, and waited for Miller to come out. Transcript Volume II at 31.

      When he did not, she exited the vehicle, knocked on the door, and heard “a

      bunch of ruckus and glass breakin’ and noises and people shufflin’ and movin’

      around.” Id. She began beating on the door, heard gun shots, and ran for cover.


[4]   After retreating to her vehicle for “probably . . . about one, two minutes,” she

      knocked on the door again and called for Phillip and Miller. Id. at 31. Moore

      eventually opened the door, and Peete saw Phillip and Miller’s bodies on the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 2 of 16
      ground. Moore pushed her down on top of the bodies and her phone “went

      one way” and her keys “went the other.” Id. at 32. He dashed into a room, she

      recovered her phone and keys and ran out the door and he ran out behind her.

      He “jumped in [Phillip’s] truck and he pulled off fast.” Id. at 33. She went

      back inside, called 911, and tried to resuscitate the lifeless bodies. Indianapolis

      Metropolitan Police Department (“IMPD”) Officer Andrew Lamle responded

      to the scene and encountered Peete.


[5]   Moore drove Phillip’s truck and arrived at the house of his cousin, Kim

      McBrady, at “[a]round twelve thirty-one AM in the morning.” Id. at 67.

      Moore told Kim that “he had messed up” and that, when he was at Phillip’s

      house, somebody knocked at the door, “him and whomever was at the door

      had gotten into a fight,” and “the guy was getting the best of him and he shot.”

      Id. He told her that “the tire had came [sic] off the truck,” he asked Kim to

      drop him off at 21st Street and Ritter Avenue, and they proceeded to that

      location. Id. at 68. She asked a couple of times that he call Phillip, and Moore

      indicated that “he’s not answerin’.” Id. at 70. When she asked him “well what

      do you think happened” and if he shot Phillip, Moore did not respond and

      “kind of jumped out of” the vehicle. Id. Kim turned around and drove to

      Phillip and Helen’s house, and she encountered and was questioned by police

      officers on the scene.


[6]   Moore arrived at 1718 Layman Avenue, and Erika Mack, who had been in bed,

      let him in and laid back down. There was “[n]ot very much” discussion between

      the two, and Moore laid down with Mack. Id. at 76. Later, a knocking at the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 3 of 16
      door awakened Mack, police officers announced themselves and ordered her to

      open the door, and she let them enter. IMPD Detective Justin McGaha ordered

      Moore to show his hands, he “just stood there and stared at” the officers, and he

      eventually stepped out with both hands in the air. Id. at 115. The officers

      ordered him to the ground, approached and handcuffed him, and found a small

      revolver handgun in his pocket. They transported and interviewed him at the

      homicide office.


[7]   A walkthrough of the scene of the crime at Phillip and Helen’s house revealed

      broken furniture, a hole in the drywall “like maybe somebody ran into” or

      “pushed into it,” and a fired bullet. Id. at 95. An autopsy of Miller revealed

      five gunshot wounds, one of which entered the back side of his neck and had a

      wound path in a leftward and downward direction. He had tears and scrapes

      on his face and arms and had no significant injuries to his hands. An autopsy

      of Phillip revealed one gunshot wound, which entered on the left side of the

      chest and had a wound path directed slightly downward, a scraped bruising of

      the right upper cheek, a scrape of the side of the head, and a fracture of his

      orbital plate, or a “very thin park [sic] of the skull overlying the eye.” Id. at 143.


[8]   The State charged Moore with two counts of murder and later alleged that he

      was an habitual offender. At Moore’s trial, the jury heard testimony from

      several witnesses, including Helen, Peete, Officer Lamle, Kim, Mack, Detective

      McGaha, IMPD Homicide Detective Leonard Nelson, Chief Forensic

      Pathologist Christopher Polous from the Marion County Coroner’s Office,



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 4 of 16
      IMPD Officer Gregory Wilkerson, a crime scene specialist, and a forensic

      scientist specialized in firearms identification.


[9]   During Peete’s cross-examination, the following exchange occurred:


              Q Okay. Now [Miller] – you mentioned before that [Miller] can
              get a little agitated when he is drinking. Correct?

              A I don’t recall telling you [Miller] get[s] agitated when he drinks.

              Q Do you recall telling [a detective] that, you know, when he
              gets that kind of way, that you just hi try [sic] to walk it off?

              A Well, I mean you know, that’s with anybody but he doesn’t
              always, like go on an outrage and go off and go crazy and do
              nothin’ stupid or anything.

              Q Okay. And when you made a statement to [the detective] that
              night, you said [Miller] gets that way you figure let him walk it
              off, I’ll come pick him up in a little bit. Everything will be cool?

              A Yeah. Or even when we’re together, he’ll just go to sleep. I
              mean but he doesn’t get to the point where I’m fearful from him
              or I think he’s going to hurt me or do anything like [sic].


      Id. at 40. Kim testified she saw Phillip’s truck when she stepped outside of her

      residence with Moore, that the tire “was off the rim,” and that she could tell

      when she saw the truck that it was disabled in some fashion. Id. at 68. During

      cross-examination, when asked if she remembered the statement she gave

      detectives and whether Moore mentioned “that he had shot the guy off of him,”

      she answered, “Yes,” and indicated that Moore had “said the guy was getting

      the best of me.” Id. at 72. The court allowed the prosecutor to conduct omitted

      direct examination, the prosecutor asked Kim if Moore complained of any pain

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 5 of 16
       or if he showed her any injuries he had received, and she answered in the

       negative.


[10]   Mack testified that she “didn’t hear him say that” he did not mean to shoot his

       uncle but that she did hear him “tell the officers he couldn’t get someone off of

       him.” Id. at 78. During cross-examination, Mack testified Moore loved his

       uncle and that, “when she was around,” he and Phillip “got along pretty good”

       and worked together. Id. at 80. On her omitted direct examination, Mack

       indicated that she did not notice any injuries on Moore, “but his face looked kid

       [sic] of red looking,” and that he did not complain to her of any pain. Id.


[11]   Detective McGaha answered in the negative when asked whether Moore made

       any complaints about experiencing pain in his presence and whether he had

       noticed any injuries on Moore. Officer Wilkerson testified that he stood beside

       Moore at the 1718 Layman address and heard him say only “My uncle, I didn’t

       mean to kill him like that, but I couldn’t [sic] him off of me.” Id. at 120.

       During cross-examination, Chief Forensic Pathologist Polous indicated that

       Miller’s blood alcohol content was .141.


[12]   Detective Nelson testified about Moore’s interview in the homicide office, and

       the court admitted without objection a DVD video recording of the interview and

       an audio transcription as State’s Exhibit Nos. 56 and 57, respectively, published

       copies of State’s Exhibit No. 57 to the jury, and played State’s Exhibit No. 56.

       State’s Exhibit No. 57 contains the following interview:




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 6 of 16
        A: [Miller] knocked on the door. I go open the door and he
        come in talking all wild, talking about why this guy didn’t pay
        him his money, this and that. Somebody else knocks on the door
        while he explained this to my uncle[, Phillip]. I’m sitting in the
        chair. My uncle was on the couch right by the door. So as soon
        as he start woo-woo-woo-woo about his money his girl, whoever
        she is, she knocks on the door. So he was about to open the
        door. So I said, “Hey, man, don’t open that door. That’s not
        your door to open[.]” You know what I’m saying? Don’t, don’t
        open the door. So he turned around and started going off. “F[---
        ] you! I’ll do. [sic] this is my grandpa’s house!” And, uh; . . . he
        ain’t really no kin to my uncle. You know what I’m saying?

                                             *****

        Q: Okay. Uh; what . . . was [Miller] talking about, about money
        or how did that come about?

        A: He, he, he, uh; cuz some, he worked for these guys and they
        didn’t pay him and, and they wasn’t paying him and this and
        that. So he wanted my uncle to drive him to go and try to get his
        money, this and that. And then my uncle wasn’t doing none of
        that run himself up.

        Q: Okay. Then what happened.

        A: And, uh; he spoke, cussed me out. “F[---] you, m[-----f-----]!”
        [T]his and that.

        Q: Uh-huh.

        A: You ain’t all that. And, you know, one thing led to another.
        You know what I’m saying? So I said, “You ain’t all that!” You
        know?

        Q: Okay I got to be more specific when you, and you have to be
        more specific . . . of the details when you say one thing led to
        another.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 7 of 16
         A: Oh, as far as, you know, he, uh; got all in my face, this and
         that. You know what I’m saying?

         Q: Okay. So he was cussing you out in your face?

         A: Yep, so, uh[] you know, I pushed him. He stole me. I stole
         him back. We got to fighting.[ 1]

         Q: Okay.

         A: So my uncle didn’t get up and try to break it up. He just let
         us fight. So, you know. And he, [Miller is] younger than me.
         He’s 29 or whatever. He, you know he, he was getting me. He
         had me on the ground on my knees. Had this coat right here
         over my head like, and it was, you know, swinging, you know.

         Q: Uh-huh.

         A: Uh; kind of, you know, fast and wild. So that’s when my
         uncle got up and said, “Okay, that’s enough! That’s enough!”
         So he was pushing him away getting him up off of me.

         Q: Now, your, your uncle, Phillip . . .

         A: Phillip.

         Q: . . . got in . . .

         A: And got him off of me.

         Q: Okay. So y’all were on the ground. [Miller] was on top of
         you?

         A: Yeah. So, uh; that’s when my uncle got him up off of me. I
         jumped up you know and, uh; and he bum rushed me again. Got
         away from my uncle and that’s when he slammed me on, on I



1
 Later, during the statement, Moore clarified that “stole” meant: “Hit . . . He hit, you know.” Exhibits
Volume at 123.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019                Page 8 of 16
        don’t know what he slammed me on, but I know my ribs right
        here is messed up, but he slammed me. He said, “Uh-huh! Uh-
        huh! You met your match now! You met your match now!” I
        said, “No, I ain’t, I ain’t met my match.” So I had a pistol in my
        pocket. You know? So he had me on the couch. You know, so
        I reached in my pocket and then I shot him. Pow! You know,
        and he, [sic] “Oh, you shot me!” So he still, you know what I’m
        saying? He backed up and then he [sic] still bum rushing me.
        You know, so I shot him a couple of more [sic]. I shot a couple
        of more times.

        Q: Uh-huh.

        A: And then I said I don’t know how my uncle got shot. I looked
        and he’s laying on the floor. And I didn’t understand that at all,
        why he got shot. I don’t. ‘Cause see [Miller] was in front of me.

        Q: Uh-huh.

        A: You know, unless my uncle was standing behind him or
        something. You know, I don’t know. I don’t know. I didn’t
        mean to shoot my uncle. I did not mean to shoot my uncle at all:
        you know, I meant to did [sic] what I did to that man. You
        know what I’m saying? Or whatever. I admit that. You know
        what I’m saying? My actions was intentionally for him, but I
        didn’t meant [sic] for my uncle to get what he got. You know
        what I’m saying? I didn’t mean that [y]ou know, that’s my
        mother’s brother. I didn’t mean that at all. So I got scared. And
        I, I left. I jumped in his truck and I left. You know, I should
        have just stayed there, but I left. (Inaudible)


Exhibits Volume at 118-120. Later questioning in the interview included the

following:


        Q: As far as you know, [Miller] didn’t have a gun, though?



Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 9 of 16
               A: I didn’t know what he had. I don’t think he had one. I don’t
               know.

               Q: I’m asking you what you . . .

               A: No, he . . .

               Q: . . . what you saw.

               A: No.

               Q: Did you see a gun?

               A: No, I didn’t see no gun.

               Q: Okay. So, basically it would have start[ed] out with hands?

               A: Yep.


       Id. at 124-125.

[13]   Detective Nelson testified that the interview occurred approximately twelve

       hours after the shooting and that he did not see any significant bruising on

       Moore


[14]   In closing, Moore’s defense counsel argued he acted in self-defense “plain and

       simple” and the jury must consider the situation from his perspective,

       highlighted Miller was drunk and not a peaceful person when he entered

       Phillip’s house, and characterized Moore’s push of Miller as “just a defensive,

       get out of my face.” Id. at 196, 198. Before discussing Moore’s video

       statement, his defense counsel stated: “Again we are not comparing two stories.

       Its [Moore’s] story. He’s in there. He knows what happened.” Id. at 201.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 10 of 16
[15]   After the jury retired to deliberate, the court granted its request to rewatch

       State’s Exhibit No. 56, and republished copies of State’s Exhibit No. 57. The

       jury found Moore guilty as charged. Moore admitted to the habitual offender

       enhancement by plea agreement, and the court sentenced him to concurrent

       terms of fifty-five years on the two counts of murder, with an additional six

       years added to the second count for the habitual offender enhancement, for an

       aggregate term of sixty-one years.


                                                   Discussion

[16]   The issue is whether the evidence is sufficient to support Moore’s convictions

       and negate his claim of self-defense. He asserts that the State failed to negate a

       single element of his self-defense claim. He points to his statement and Peete’s

       testimony and argues that the “much younger and stronger” Miller was legally

       intoxicated and agitated, became hostile and aggressive, and instigated and

       continued to pursue a violent fight. Appellant’s Brief at 15. He contends that

       Miller violently confronted him a second and third time following his and

       Phillip’s attempts to deescalate the conflict, and that, unable to prevent further

       serious bodily injury, he shot Miller. He contends his statement to the police, as

       the only complete version of what occurred, was shown to be reliable, accurate,

       and corroborated, and that no evidence clearly contradicts anything in his

       statement or demonstrates that he willingly participated in the violence.


[17]   The State maintains that the evidence is sufficient to rebut Moore’s claim of

       self-defense and sustain his convictions. It argues that Moore initiated the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 11 of 16
       altercation when he pushed Miller during a verbal argument, which began a

       fistfight between the two men, and that his statements to the police contain no

       mention of fear and show that he did not believe deadly force was necessary to

       prevent serious bodily injury. It points out that his withdrawal of a handgun

       from his pocket and the shooting of an unarmed Miller followed his retort of

       “No I ain’t, I ain’t met my match,” and it argues that he shot Miller because he

       was angry. Appellee’s Brief at 12.


[18]   At the time of the offense, Ind. Code § 35-42-1-1(1) provided that a “person who .

       . . knowingly or intentionally kills another human being . . . commits murder, a

       felony.” (Subsequently amended by Pub. L. No. 252-2017, § 10 (eff. Jul. 1,

       2017); Pub. L. No. 144-2018, § 18 (eff. Jul. 1, 2018); Pub. L. No. 203-2018, § 1

       (eff. Jul. 1, 2018); and Pub. L. No. 215-2018(ss), § 16 (eff. Jul. 1, 2018)). Under

       the doctrine of transferred intent, “if the evidence shows the requisite mental state

       to exist in conjunction with the performance of a criminal act, then the law may

       punish the perpetrator, although the particular person injured was a mere

       bystander.” Henderson v. State, 343 N.E.2d 776, 778 (Ind. 1976). Stated

       differently, “when one person (A) acts (or omits to act) with intent to harm

       another person (B), but because of a bad aim he instead harms a third person (C)

       whom he did not intend to harm, the law considers him (as it ought) just as guilty

       as if he had actually harmed the intended victim.” 1 WAYNE R. LAFAVE,

       SUBSTANTIVE CRIMINAL LAW § 6.4(d) (2d ed. 2003) (footnotes omitted).

       “Under the doctrine, a defendant’s intent to kill one person is transferred when,

       by mistake or inadvertence, the defendant kills a third person; the defendant may


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 12 of 16
       be found guilty of the murder of the person who was killed, even though the

       defendant intended to kill another.” Blanche v. State, 690 N.E.2d 709, 712 (Ind.

       1998) (citing White v. State, 638 N.E.2d 785, 786 (Ind. 1994).


[19]   Pursuant to Ind. Code § 35-41-3-2(c),


               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:

                        (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.


       (Subsequently amended by Pub. L. No. 107-2019, § 7 (eff. April 26, 2019)).

       Serious bodily injury means “bodily injury that creates a substantial risk of

       death or that causes . . . extreme pain . . . .” Ind. Code § 35-31.5-2-292. A valid

       claim of self-defense is legal justification for an otherwise criminal act. Wilson v.

       State, 770 N.E.2d 799, 800 (Ind. 2002). In order to prevail on a self-defense

       claim, a defendant must demonstrate he was in a place he had a right to be; did

       not provoke, instigate, or participate willingly in the violence; and had a

       reasonable fear of death or great bodily harm. Id. The amount of force a

       person may use to protect himself or herself must be proportionate to the

       urgency of the situation. Harmon v. State, 849 N.E.2d 726, 730-731 (Ind. Ct.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 13 of 16
       App. 2006). When a person uses more force than is reasonably necessary under

       the circumstances, the right of self-defense is extinguished. Id. at 731.


[20]   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. Wilson,

       770 N.E.2d at 800. If a defendant is convicted despite his claim of self-defense,

       we will reverse only if no reasonable person could say that self-defense was

       negated by the State beyond a reasonable doubt. Id. at 800-801. A mutual

       combatant, whether or not the initial aggressor, must declare an armistice

       before he or she may claim self-defense. Id. at 801; see Ind. Code § 35-41-3-2(g)

       (providing “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”) (subsequently amended by Pub. L. No. 107-2019, § 7 (eff.

       April 26, 2019)). The standard of review for a challenge to the sufficiency of the

       evidence to rebut a claim of self-defense is the same as the standard for any

       sufficiency of the evidence claim. Wilson, 770 N.E.2d at 801. 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.


[21]   The record reveals that Miller suffered five gunshot wounds, one of which

       entered the back side of his neck and had a leftward and downward direction.

       The jury watched a video recording of Moore’s statement to the police, which it

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 14 of 16
       asked to re-watch during its deliberation. In it, Moore indicated Miller “got all

       in [his] face, this and that,” answered affirmatively when asked, “[s]o he was

       cussing you out in your face,” and then expounded “so uh[] you know, I

       pushed him.” Exhibits Volume at 119. He stated:


               He said, “Uh-huh! Uh-huh! You met your match now! You
               met your match now!” I said, “No, I ain’t, I ain’t met my
               match.” So I had a pistol in my pocket. You know? So he had
               me on the couch. You know, so I reached in my pocket and then
               I shot him. Pow!


       Id. He admitted that he did not see Miller with a gun and offered that, although

       he did not mean to shoot his uncle, he had “meant to d[o] what [he] did to that

       man” and his “actions w[ere] intentional[] for” Miller. Id. at 120. Although

       Moore argues that the conflict with Miller was violent, Mack did not notice any

       injuries on Moore, Detective McGaha indicated that Moore did not complain

       about experiencing any pain and that he did not notice any injuries on him, and

       Detective Nelson testified that he did not see any significant bruising on him.

       The jury as the trier of fact was able to assess Moore’s demeanor and credibility

       and, based upon all of the evidence before it, could determine that he provoked

       or instigated the violence, that he did not withdraw from the encounter, that he

       did not have a reasonable fear of great bodily harm, or that the amount of force

       he used was unreasonable under the circumstances.


[22]   We conclude that the State presented evidence of a probative nature from

       which a reasonable trier of fact could have determined beyond a reasonable

       doubt that Moore did not validly act in self-defense and that he was guilty of the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 15 of 16
       charged offenses. See Bryant v. State, 498 N.E.2d 397, 398 (Ind. 1986) (holding

       that the defendant’s “position amounts to no more than an invitation for us to

       reweigh the evidence” and noting that the State’s evidence was sufficient to

       negate self-defense).


[23]   For the foregoing reasons, we affirm Moore’s convictions.


[24]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-680 | September 20, 2019   Page 16 of 16
