MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
court except for the purpose of establishing                       Aug 09 2017, 6:19 am

the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Ann Johnson                                         Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Caryn N. Szyper
                                                         Deputy Attorney General
Frederick Vaiana                                         Indianapolis, Indiana
Voyles Zahn & Paul
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ron C. Stewart,                                          August 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1604-CR-740
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G01-1505-F2-15772



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017        Page 1 of 12
[1]   Ron C. Stewart appeals his conviction of Level 2 felony voluntary

      manslaughter, 1 a lesser included offense of murder. Stewart raises two issues on

      appeal:

                 1. Whether the State presented sufficient evidence to disprove
                 Stewart’s claim of self-defense; and


                 2. Whether the trial court erred in instructing the jury on self-
                 defense.


[2]   We affirm.



                                Facts and Procedural History
[3]   On May 3, 2015, Nicholas Norris and his girlfriend, Amanda Patton, were

      riding his motorcycle in Indianapolis. They were riding alongside another

      motorcycle carrying two friends, Ryan and Rachel Harrison. Both motorcycles

      were cut off by a Dodge Durango driven by Stewart. The motorcycles pulled

      up beside the Durango at the next red light, and Norris began to yell at Stewart

      about cutting them off. Stewart held up a handgun and said, “You just need to

      keep goin [sic].” (Tr. Vol. II at 382.) When the light turned green, Stewart

      quickly sped away from the motorcycles and then pulled into a nearby pawn

      shop parking lot. Norris and Harrison followed the Durango into the parking

      lot and positioned their motorcycles a couple feet in front of the Durango near




      1
          Ind. Code § 35-42-1-3 (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017   Page 2 of 12
      the parking lot exit. Stewart then backed away from the motorcycles, but

      Norris rode his motorcycle forward and stopped near the front passenger side

      door of the Durango. As Stewart tried to drive around Norris’ motorcycle,

      Norris hit the Durango with a “monkey ball,” described at trial as “a self

      defense [sic] weapon.” 2 (Tr. Vol. I at 126.)


[4]   Stewart then drove the Durango toward the parking lot exit and stopped about

      “ten car lengths” from Norris’ motorcycle. (Id. at 56.). Norris was still on his

      motorcycle, but Patton was not. Stewart exited his Durango, walked to the

      back of the vehicle, and fired his weapon six times in the direction of the

      motorcyclists. Norris fell to the ground after being shot in his left shoulder and

      the back of his head. After firing the shots, Stewart got back into the Durango

      and drove away. Norris died during the ambulance ride to the hospital.


[5]   Stewart drove to his mother’s house to tell her about the incident. His mother

      lived with Yeozenith Eaton. Eaton testified that when Stewart was telling him

      about the shooting, Stewart said “he was defending hisself [sic] and his

      vehicle,” (id. at 100), and that he “fired until the guy went down.” (Id. at 102.)

      Eaton encouraged Stewart to turn himself in to police, and when Stewart

      refused, Eaton told him to get away from the house.




      2
       Ryan Harrison described the item as a key chain with a rubber ball that is “basically a safety measure . . .
      somethin [sic] to kind of alert the car that you’re about to run us over.” (Tr. Vol. I at 148-49.) Mark Wallace
      of the Marion County Forensic Services Agency described the “monkey ball” “as a lanyard with a ball at one
      end and a . . . silver metal attachment at the other end.” (Tr. Vol. II at 264.)

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017               Page 3 of 12
[6]   Stewart eventually drove to a nearby hotel where he paid for a week-long stay.

      Eaton called police and informed them Stewart admitted shooting someone.

      Ryan Harrison, one of the motorcyclists at the scene, picked Stewart’s

      photograph out of a six-person photograph array. Two days after the shooting,

      police found Stewart at his hotel and arrested him. Inside the hotel room,

      police found Stewart’s wallet, keys, and cell phone. On Stewart’s cell phone

      were searches for travel to Florida, extended stays at a hotel, and temporary

      housing in Florida. He searched for web articles about road rage, and,

      specifically, news stories related to him shooting Norris. Police also found

      multiple searches on Stewart’s phone regarding the Wikipedia pages for the

      “duty to retreat,” (id. at 212), and “stand your ground” laws. (Id.)


[7]   The State initially charged Stewart with Level 2 felony voluntary manslaughter,

      but later amended the charge to murder. 3 After a one-day jury trial, the jury

      found Stewart not guilty of murder, but guilty of the lesser included offense of

      voluntary manslaughter. The trial court imposed a fourteen-year sentence, with

      ten years executed in the Department of Correction, two years executed in

      community corrections, two years suspended, and one year of probation.



                                    Discussion and Decision




      3
          Ind. Code § 35-42-1-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017   Page 4 of 12
                                    Sufficiency of the Evidence
[8]    Stewart does not dispute he shot and killed Norris. Instead, he argues the State

       presented insufficient evidence to disprove his claim of self-defense beyond a

       reasonable doubt.


[9]    The standard of review for a challenge to the sufficiency of evidence to rebut a

       claim of self-defense is the same standard used for any claim of insufficient

       evidence. Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). We neither

       reweigh the evidence nor judge the credibility of witnesses. Walker v. State, 998

       N.E.2d 724, 726 (Ind. 2013). A conviction will be affirmed if there is sufficient

       evidence of probative value to support the trier of fact’s conclusion. Wilson v.

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


[10]   To prove Stewart committed Level 2 felony voluntary manslaughter, the State

       needed to present evidence Stewart: 1) knowingly or intentionally, 2) killed

       another human being, 3) while acting under sudden heat. See Ind. Code § 35-

       42-1-3 (2014). “The existence of sudden heat is a mitigating factor that reduces

       what otherwise would be murder under section 1(1) of this chapter to voluntary

       manslaughter.” Ind. Code § 35-42-1-3(b) (2014).


[11]   “A valid claim of self-defense is legal justification for an otherwise criminal

       act.” Wallace, 725 N.E.2d at 840.


               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;

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017   Page 5 of 12
               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.


       Ind. Code § 35-41-3-2(c) (2013).


[12]   To prove he acted in self-defense, the defendant must demonstrate 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; Ind. Code § 35-41-3-2 (2013).

       Force is not justified if the person asserting self-defense 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.” Ind. Code § 35-41-3-2(g)(3). Before claiming self-defense, “a

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

       armistice.” Wilson, 770 N.E.2d at 801. “Where a person has used more force

       than is necessary to repel an attack the right to self-defense is extinguished, and

       the ultimate result is that the intended victim then becomes the perpetrator.”

       Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995), trans denied.


[13]   When a defendant meets his initial burden as to self-defense, “the State has the

       burden of negating at least one of the necessary elements.” King v. State, 61

       N.E.3d 1275, 1283 (Ind. Ct. App. 2016), trans. denied. “The State may meet this

       burden by rebutting the defense directly, by affirmatively showing the defendant


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017   Page 6 of 12
       did not act in self-defense, or by simply relying upon the sufficiency of its

       evidence in chief.” Id. 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 beyond a reasonable doubt. Wilson, 770 N.E.2d at 800-01.


[14]   Stewart argues the State did not meet its burden of disproving his claim of self-

       defense because the State did not negate an essential element of self-defense.

       Specifically, Stewart contends that he acted without fault and only fired his

       weapon because he had a reasonable fear for his life. We disagree.


[15]   It is undisputed that by being on the road and in a pawn shop parking lot,

       Stewart was in a place he had a right to be. Stewart states that he acted without

       fault, and he was forced to unwillingly participate in the fighting after repeated

       aggressive acts from Norris. Stewart further argues that he fired his weapon

       that day because he was in a state of reasonable fear for his safety, as he

       believed the motorcyclists to be members of a gang called “The Outlaws.” (Tr.

       Vol. II at 379.) He stated at trial, “I felt like I was gonna [sic] lose my life – if it

       wasn’t to them [sic] it was gonna [sic] be me.” (Id. at 388.)


[16]   However, Stewart testified that he never saw Norris or the other motorcyclists

       with a gun. The only weapon Stewart testified to seeing was an object Norris

       was swinging which “looked like a ball with two hooks hangin [sic] from it.”

       (Id. at 380.) Stewart was near the exit of the pawn shop parking lot, and the

       motorcyclists were ten car lengths away dismounting from their bikes, when

       Stewart exited his Durango and shot at the motorcyclists. As Stewart had a


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017   Page 7 of 12
       way to exit the situation without resorting to deadly force, he cannot

       demonstrate he had a reasonable fear of death or great bodily harm. See Porter

       v. State, 543 N.E.2d 390, 391 (Ind. 1989) (self-defense not available when

       “appellant had ample opportunity to retreat from the scene and obviate the

       necessity of inflicting wounds upon the victim”). Further, one of Stewart’s

       shots struck Norris in the back of the head, indicating Norris was turned away

       from Stewart. See Jordan v. State, 656 N.E.2d 816, 817-18 (Ind. 1995)

       (defendant did not have a valid assertion of self-defense when defendant was

       the first to display a weapon and shot the victim in the back), reh’g denied.


[17]   In addition, the evidence presented at trial revealed Stewart willingly entered

       into mutual combat with Norris by holding up his gun at the red light when

       Norris yelled at Stewart for cutting off the motorcycles. Thus, in order for

       Stewart to have a valid claim he shot Norris in self-defense, he would have had

       to withdraw from the mutual combat with Norris and communicate his

       withdrawal to Norris, and then Norris would have had to reengage in combat

       with Stewart before Stewart could be deemed to have acted in self-defense. The

       record shows that Stewart did not withdraw from the situation or if he did, he

       did not communicate his withdrawal to Norris. Further, if Stewart had

       withdrawn, Norris was sitting on his motorcycle and had not reengaged Stewart

       in combat. See Sudberry v. State, 982 N.E.2d 475, 481-82 (Ind. Ct. App. 2013)

       (sufficient evidence to rebut claim of self-defense where defendant was a mutual

       combatant, did not withdraw from the fight or communicate his intent to

       withdraw, and used more force than necessary to repel his attacker).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017   Page 8 of 12
[18]   Stewart’s argument that the State presented insufficient evidence to negate his

       self-defense claim is merely an invitation to reweigh the evidence and judge the

       credibility of witnesses, which we will not do. See Wilson, 770 N.E.2d at 801.

       As there was substantial evidence of probative value to support the jury’s

       finding of guilt, we hold the evidence was sufficient. See, e.g., id. (holding

       evidence sufficient to rebut defendant’s claim of self-defense where defendant

       was retaliating against initial aggressor and did not withdraw).


                                      Self-Defense Instruction
[19]   Next, Stewart argues the trial court abused its discretion in not instructing the

       jury with his proposed final instructions for his self-defense claim. “The

       purpose of jury instructions is to inform the jury of the law applicable to the

       facts without misleading the jury and to enable it to comprehend the case

       clearly and arrive at a just, fair, and correct verdict.” Murray v. State, 798

       N.E.2d 895, 899 (Ind. Ct. App. 2003). When reviewing jury instruction

       decisions for an abuse of discretion, we consider: (1) whether the instruction

       correctly states the law; (2) whether there was evidence in the record to support

       the instruction; and (3) whether the substance of the instruction is covered by

       other instructions given. Hollowell v. State, 707 N.E.2d 1014, 1023 (Ind. Ct.

       App. 1999). For a trial court to have abused its discretion, “the instructions

       given must be erroneous, and the instructions taken as a whole must misstate

       the law or otherwise mislead the jury.” Murray, 798 N.E.2d at 900.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017   Page 9 of 12
[20]   Stewart does not dispute that the trial court’s self-defense instruction correctly

       stated the law and was clearly supported by the evidence. However, Stewart

       contends the instruction given to the jury at trial “was incomplete in the sense

       that, while it accurately outlined the jury’s duty in finding a self-defense claim,

       it failed to instruct how to arrive at its verdict if it made such a finding.”

       (Appellant’s Br. at 16). Stewart’s proposed final jury instruction read as

       follows:

               It is an issue whether the Defendant acted in self-defense.


               A person may use reasonable force against another person to
               protect himself from what he reasonably believes to be the
               imminent use of unlawful force.


               A person is justified in using deadly force, and does not have a
               duty to retreat, only if he reasonably believes that deadly force is
               necessary to prevent serious bodily injury to himself.


               The State has the burden of proving beyond a reasonable doubt
               that the Defendant did not act in self-defense.


               If you find that the State has failed to prove beyond a reasonable doubt
               that the Defendant did not act in self-defense, you must find the
               Defendant NOT GUILTY of all charges.


       (App. Vol. II at 109) (emphasis added).


[21]   The trial court instead issued the pattern instruction on self-defense, which read:


               It is an issue whether the Defendant acted in self-defense.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017   Page 10 of 12
               A person is justified in using reasonable force against another
               person to protect himself or a third person from what the person
               reasonably believes to be the imminent use of unlawful force.


               However, a person is justified in using deadly force and does not
               have a duty to retreat, if he reasonably believes that deadly force
               is necessary to prevent serious bodily injury to himself or a third
               person or to prevent the commission of a felony.


               A person may not use force if:


                   • He is committing a crime that is directly and immediately
                     related to the confrontation;


                   • He is escaping after the commission of a crime that is
                     directly and immediately connected to the confrontation;


                   • He provokes unlawful action by another person, with
                     intent to cause bodily injury to the other person; or


                   • He enters into combat with another person or is the initial
                     aggressor unless he 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.


               The State has the burden of proving beyond a reasonable doubt
               that the Defendant did not act in self-defense.


       (Id. at 122.)


[22]   Essentially, Stewart’s argument on appeal is that because the trial court’s jury

       instruction did not inform the jury of its duty to find him not guilty in the event
       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017   Page 11 of 12
       the State did not negate Stewart’s self-defense claim, that instruction stands

       apart from the other jury instructions and misled the jury. We disagree.


[23]   The trial court used the Indiana Pattern Jury Instruction for self-defense, and

       the pattern instruction “tracks the language of the self-defense and defense of

       another statute.” Washington v. State, 997 N.E.2d 342, 349 (Ind. 2013). The

       pattern instruction is also a correct statement of law. Id. at 350 (“the instruction

       given in the present case by the trial court was a correct statement of the law”).

       Accordingly, the trial court did not abuse its discretion when it declined to

       instruct the jury with the defendant’s proposed final instruction because Indiana

       Pattern Jury Instruction 10.03A is a correct statement of law and properly

       instructed the jury on self-defense. See id. (trial court’s use of the pattern

       instruction on self-defense instead of the defendant’s proffered instructions was

       not an abuse of its discretion).



                                               Conclusion
[24]   The State presented sufficient evidence to negate Stewart’s claim of self-defense

       beyond a reasonable doubt. Furthermore, the trial court did not abuse its

       discretion when it instructed the jury regarding self-defense. Accordingly, we

       affirm.


[25]   Affirmed.


       Brown, J., and Pyle, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017   Page 12 of 12
