MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                           Jun 08 2016, 8:34 am
this Memorandum Decision shall not be
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regarded as precedent or cited before any                         Indiana Supreme Court
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court except for the purpose of establishing                           and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
D. Alan Ladd                                             Gregory F. Zoeller
Ladd and Thomas                                          Attorney General of Indiana
Indianapolis, Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tristan Crayton,                                         June 8, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1510-CR-1690
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant Hawkins,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G05-1309-FC-62308



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1690 | June 8, 2016       Page 1 of 11
                                  Case Summary and Issue
[1]   Following a bench trial, Tristan Crayton was found guilty of criminal

      recklessness, a Class D felony. Crayton appeals his conviction, raising the sole

      issue of whether the State sufficiently rebutted his claim of self-defense.

      Concluding the State sufficiently rebutted his claim of self-defense to the

      criminal recklessness charge, we affirm.



                              Facts and Procedural History
[2]   After leaving an Indianapolis nightclub in the early morning hours of August 2,

      2013, Matthew Williams and Andrew Allen had a verbal confrontation on

      Broad Ripple Avenue outside the nightclub. Crayton, who had been with

      Williams inside the nightclub, tried to defuse the situation. An Indianapolis

      Metropolitan Police Department reserve officer working security at a restaurant

      near the altercation told the men to break it up and move along. Williams and

      Crayton headed west on Broad Ripple Avenue and turned south on College

      Avenue. Allen, now accompanied by Raymond Williams 1 and others,

      followed. The group walked past a second entrance to the nightclub on College

      Avenue before stopping to continue their confrontation by “squaring up” as if

      to fight. Transcript at 291. Additional people joined the fray, and eventually a

      dozen or more people were in the immediate vicinity.




      1
          Matthew Williams and Raymond Williams are not related.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1690 | June 8, 2016   Page 2 of 11
[3]   Samuel Wade, a manager at the nightclub, had been called to the Broad Ripple

      Avenue entrance of the club when the initial altercation was going on, but the

      men had already moved away from that entrance by the time he got there.

      Wade followed them around the corner to make sure they did not try to re-enter

      the nightclub through the College Avenue entrance. When the group continued

      on past the entrance, Wade paused to smoke a cigarette and check his phone.


[4]   After stopping about thirty feet past the nightclub entrance on College Avenue,

      Williams pushed Allen and then Allen punched Williams in the face, knocking

      him to the ground and fracturing his orbital bone. Crayton had gone to his car,

      which was parked just south of the action on College Avenue, and retrieved his

      handgun. Within seconds of Allen punching Williams, Crayton began shooting

      into the assembled crowd. Witnesses testified there were at least ten shots fired.

      Allen was shot in the arm and leg; Raymond Williams was shot in the knee, the

      toe, and twice in the back; and Wade was shot in the inner thigh, above his

      knee, and in the foot. In addition, Gabriel Daniels, another acquaintance of

      Allen’s, was shot in the chest, the back, and the leg.


[5]   Crayton identified himself as the shooter when police arrived on the scene, and

      he admitted that he fired his gun several times: “first at the initial threat, initial

      people coming towards me . . . [a]nd then I had rotated around to the three that

      were on [Williams] and then I seen [sic] another figure kind of pop up close and

      I came back around and shot again.” Id. at 447-48. Crayton testified about the

      reason he shot the gun:



      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1690 | June 8, 2016   Page 3 of 11
                 I thought literally that they were going to beat the shit out of us
                 because I mean you got a whole football team what appears to be
                 like rushing you and you already see your friend unconscious on
                 the ground [and] I felt like I didn’t have any options.


      Id. at 453-54. Ten shell casings were recovered from the scene that matched the

      handgun retrieved from Crayton’s car. No one else who was interviewed by

      police during the investigation had a weapon, and Crayton testified that he was

      never struck by anyone, he had not seen anyone with a weapon, and no one

      else fired a gun.


[6]   A grand jury returned an indictment against Crayton in twelve counts: four

      counts of battery as a Class C felony, four counts of criminal recklessness as a

      Class C felony, and four counts of criminal recklessness as a Class D felony. 2

      Crayton was tried to the bench on June 22, 2015. The parties returned to court

      for final arguments on July 22, 2015, at the conclusion of which the trial court

      found Crayton guilty of Count IX, criminal recklessness as a Class D felony for

      shooting Wade, and not guilty of the remaining counts. The trial court

      explained its ruling:


                 It is clear that the State of Indiana has an obligation to overcome
                 self-defense beyond a reasonable doubt. As to the four
                 intentional – four allegations of intentional shooting,[3] I don’t
                 think the State has. . . . Counts Five through Eight require proof



      2
       This equates to one count of battery, one count of Class C felony criminal recklessness, and one count of
      Class D felony criminal recklessness for each of the four shooting victims.
      3
          The trial court is referring to Counts I through IV, battery as a Class C felony.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1690 | June 8, 2016              Page 4 of 11
         that the defendant recklessly shot into a sidewalk area and could
         have caused injuries. If you remember we had that, that one
         exhibit, the aerial and I tried to ask everybody to show me where
         they were and that sort of thing and didn’t seem like a whole lot
         of lining up on the sidewalk area was occurring. That’s an
         essential element of the criminal recklessness charge in those
         counts so there will be a finding of not guilty there.[4] The concept
         of criminal recklessness doesn’t comfortably apply to . . . Andrew
         Allen and Ray Williams because I think the shooting goes to it
         was intentional, not reckless. I think it was done in self-defense
         which goes back to the finding on Counts One through Four.
         [Daniels] is a problem. [Wade is] a bigger problem. Daniels,
         however, was associated with the other two – two of the other
         shooting victims and I agree with both of you we have the
         situation where fight fight or wreck wreck or whatever and
         people just come running. . . . We have to look at what the
         defendant thought when he saw that crowd rushing towards him
         and his friend. You know, knowing that there is a lot of
         provoking going on between his friend and Allen. So I’m not,
         not sure where I fall on Daniels, however I am sure where I fall
         on Wade. The use of self-defense must be reasonable and I think
         [the State is] right, just shooting into a crowd is not reasonable.
         Now, three of the people who got shot were three folks who
         might have been legitimate targets of concern. Mr. Wade is, like
         you say, the innocent bystander. And shooting and causing his
         injury is, is neither self-defense nor reasonable. So as to, I believe
         it’s Count Nine where Sam Wade is the victim . . . there will be a
         finding of guilty as charged. And as to Mr. Daniels, I guess
         because I’m not sure that, that’s reasonable doubt so there will be




4
 Counts V through VIII alleged Crayton “did recklessly, knowingly or intentionally perform an act, that is:
shooting a firearm into a place where people are likely to gather, that is: the sidewalk . . ., that created a
substantial risk of bodily injury to another person . . . .” Amended Appellant’s Appendix at 17.

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1690 | June 8, 2016                Page 5 of 11
              a finding of not guilty on that count as well. So not guilty
              everywhere except Count Nine.


      Id. at 511-13.


[7]   One day prior to the scheduled sentencing hearing, Crayton filed a motion to

      reconsider the guilty verdict on Count IX. At the sentencing hearing, the trial

      court denied the motion, stating, “I think when you are intentionally shooting

      people, which is what you are doing when you invoke self defense, you are

      saying, I shot him and meant to shoot him. That applies to the people who are

      providing the threat and not to those who may have been hurt.” Tr. of

      Sentencing Hearing at 3. The trial court then sentenced Crayton to 180 days

      suspended to probation, following the successful completion of which he is

      eligible for alternative misdemeanor sentencing. Crayton now appeals his

      conviction.



                                 Discussion and Decision
                                     I. Standard of Review
[8]   “A valid claim of defense of oneself or another person is legal justification for

      an otherwise criminal act.” Hobson v. State, 795 N.E.2d 1118, 1121 (Ind. Ct.

      App. 2003), trans. denied. When a claim of self-defense or defense of another

      finds support in the evidence, the State has the burden of negating at least one

      of the necessary elements. Huls v. State, 971 N.E.2d 739, 746 (Ind. Ct. App.

      2012), trans. denied. Our standard of reviewing a challenge to the sufficiency of


      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1690 | June 8, 2016   Page 6 of 11
      evidence to rebut a self-defense or defense of another claim is the same as the

      standard for any sufficiency of the evidence claim. Wilson v. State, 770 N.E.2d

      799, 801 (Ind. 2002). We neither reweigh the evidence nor judge the credibility

      of the witnesses. Id. If there is sufficient evidence of probative value to support

      the trier of fact’s conclusion, we will not disturb the judgment. Id.


[9]           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. No person in this state shall
              be placed in legal jeopardy of any kind whatsoever for protecting
              the person or a third person by reasonable means necessary.


      Ind. Code § 35-41-3-2(c). In order 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. Wilson, 770 N.E.2d at 800. The

      force used must be proportionate to the requirements of the situation

      confronting the defendant. Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App.

      2014), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1690 | June 8, 2016   Page 7 of 11
                         II. Criminal Recklessness as to Wade
[10]   Crayton argues the State presented insufficient evidence to rebut his claim of

       self-defense and defense of another and therefore the trial court erred in finding

       he was guilty of criminal recklessness with respect to Wade. Specifically,

       Crayton argues the “reasonable and justified intent to defend himself and

       [Williams] transferred to Wade.” Corrected Amended Appellant’s Brief at 19.


[11]   In Indiana, the doctrine of transferred intent is applicable to a situation where a

       person intends to kill or injure one victim and acts toward that end, but through

       mistake or inadvertence, kills or injures an unintended victim. Matthews v. State,

       866 N.E.2d 821, 825 n.3 (Ind. Ct. App. 2007), trans. denied. Other states

       recognize the doctrine of transferred intent can be applied to a self-defense

       claim. See, e.g., People v. Blue, 799 N.E.2d 804, 811 (Ill. App. Ct. 2003) (“Under

       the doctrine of transferred intent, defendant can be exonerated if he shoots an

       assailant in self-defense but injures another; defendant’s intent to shoot his

       assailant in self-defense is transferred to the unintended victim.”); State v.

       Zumwalt, 973 S.W.2d 504, 506 (Mo. Ct. App. 1998) (“Missouri courts have

       long applied the rule that if the killing or injury of a person intended to be hit

       would, under all the circumstances, have been excusable or justifiable on the

       theory of self-defense, then the unintended killing or injury of a bystander by a

       random shot fired in the proper and prudent exercise of such self-defense is also

       excusable or justifiable.”). Crayton has not directed us to any Indiana criminal

       case, nor has our research uncovered any, expressly holding the same.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1690 | June 8, 2016   Page 8 of 11
[12]   Crayton does direct our attention to Carbo, Inc. v. Lowe, 521 N.E.2d 977 (Ind.

       Ct. App. 1988), trans. denied. In that wrongful death case, a liquor store clerk

       who was stocking coolers heard a bell indicating the door had opened and

       returned to the store front to see two masked and armed men flanking a third

       unmasked man approaching the counter. The clerk reached under the counter

       for a revolver and the two masked men fired several shots at him, but missed.

       The clerk returned their fire and all the men ducked behind their respective

       sides of the counter. Lowe, the unmasked man, vaulted over the counter and

       drew a shot from the clerk. Lowe then lunged toward the clerk and the clerk

       fired again. Lowe fell at the clerk’s feet, where he died. During this

       commotion, the two masked men fled the store unnoticed and were never

       apprehended. It turned out that Lowe had merely entered the store at the same

       time as the would-be robbers but was not associated with them nor was he

       armed. His widow brought a wrongful death action against the liquor store and

       store clerk, and a jury awarded her $500,000. On appeal, we reversed the jury

       verdict, holding the clerk’s actions were justifiable under the criminal standards

       of self-defense:

               The three men entered together. While Lowe was not masked,
               was in fact unarmed and had frequented the liquor store, [the
               clerk] nevertheless had no certain knowledge as to whether Lowe
               was one of the robbers or not. Certainly he might have been.


               Not only were the other two men carrying guns, they opened fire.
               When Lowe, without explanation, vaulted over the counter, [the
               clerk] was entitled to believe, as he did, that he was being


       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1690 | June 8, 2016   Page 9 of 11
               attacked in pursuance of a robbery attempt. Had he hesitated to
               confirm the facts, he might himself have been killed.


       Id. at 980.


[13]   We must accept that the trial court found Crayton acted in self-defense or

       defense of another in shooting into the crowd that had assembled around

       Williams and him after Williams was punched and perhaps briefly knocked out.

       To the extent the result in a civil tort case is applicable to this criminal case, we

       note that unlike the unmasked man in Carbo, there was not even the appearance

       that Wade was involved in the altercation or posed any threat to Crayton or

       Williams. Wade was approximately thirty feet away from the group Crayton

       found threatening to himself and his friend. Crayton discharged his weapon

       into a crowd ten times, swinging from side to side and back again. Crayton

       acted recklessly and disproportionately in discharging his weapon in a manner

       that exceeded the immediate perceived threat. See Weedman, 21 N.E.3d at 892;

       cf. Yingst v. Pratt, 139 Ind. App. 695, 700, 220 N.E.2d 276, 279 (1966) (holding

       that a business owner who was the victim of a crime “as vicious as armed

       robbery” was excused from liability for an injury caused to a patron when the

       would-be robber’s gun discharged while the owner wrestled with him, but

       questioning whether the owner would have been excused if he had instead used

       a shot gun or machine gun to thwart the robber, as “the force employed must

       not be out of proportion to the apparent urgency of the occasion”).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1690 | June 8, 2016   Page 10 of 11
                                               Conclusion
[14]   Viewing the facts in the light most favorable to the trial court’s determination,

       there is sufficient evidence of probative value to support the trial court’s

       conclusion that Crayton was guilty of criminal recklessness as to Wade.

       Crayton’s conviction is affirmed.


[15]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1690 | June 8, 2016   Page 11 of 11
